\ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


a:^  introduction 


TO 


MUNICIPAL  LAW. 


DESIGNED    FOR 


OEl^ERAL  READERS,  AND  FOR  STUDENTS  IN 
COLLEGES  AND  HIGHER  SCHOOLS. 


BY 

JOHN    NORTON    POMEROY, 

COUNSELLOE-AT-LAW. 


SECOND  EDITION. 


SAN  FBANCISCO: 

BANCROFT-WHITNEY    CO 

LAW  PUBLISHEES  AND  LAW  BOOKSELLERS. 

/  1886. 


r 

Entered  accordiDg  to  Act  of  Congress,  in  the  year  1864-  b» 

D.  APPLETOX  AND  COMPANY, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  foi  i»i<?  Southern  Distre* 

of  Kew  York. 


Entered  according  to  Act  of  Congress,  in  the  year  1883,  by 

AXNIE  E.  POMEEOY, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


TO 

MARTIN    B.    ANDERSON,    LL.D., 

PRESIDENT  or  TKJS  UNTTERSITT  OF  ROCHESTER, 

A.T    WHOSE     SUGGESTION    THIS    "WORK    "WAS    UNDERTAKEN 

IT  IS  DEDICATED, 

AS  A  SLIGHT  EXPRESSION  OF   ADMIRATION 

FOS  HIS 

VARIED     ACQUIREMENTS, 

AND 

RESPECT  FOR  HIS  EXALTED  CHARACTER. 


LU-'^A^i^ 


PREFACE 


SECOND    EDITION 


In  publishing  a  new  and  somewhat  revised  edition  of 
this  book,  I  desire  to  express  my  sincere  thanks  for  the 
approval  which  it  has  met  from  jurists  and  scholars  most 
competent  to  pass  judgment  upon  such  a  work.  As  its 
whole  scope  and  design  were  new,  as  it  was  intended  for 
the  use  of  general  readers,  of  students  in  colleges  and 
higher  schools,  and  as  introductory  to  the  course  of  pro- 
fessional studies  by  law  students,  it  differs  both  in  plan 
and  mode  of  treatment  from  the  ordinary  legal  text-books. 
Its  original  method  has  not  been  departed  from  in  prepar- 
ing a  new  edition.  Some  alterations  have  been  made  in 
order  to  give  the  result  of  recent  decisions  upon  an  im- 
portant subject,  and  an  index  has  been  added,  which  was 
wanting  in  the  first  edition;  but  the  text  is  substantially 
unchanged.  The  last  part,  which  contains  an  outline  of 
our  civil  jiirisprudence,  is  intentionally  brief  and  element- 

(V) 


VI  PREFACE  TO   THE   SECOND   EDITION. 

ary,  for  the  use  of  general  readers  and  college  classes,  and 
not  designed  to  take  the  place,  in  a  course  of  professional 
study,  of  such  institutional  writers  as  Kent  and  Blackstone. 
The  historical  and  by  far  most  important  portion  con- 
tains the  results  of  modern  scholarship,  English,  German, 
and  French,  taken  from  works  of  the  highest  authority, 
which  are  not  ordinarily  found  in  the  lawyer's  library,  and 
many  of  which  are  not  always  accessible  by  the  general 
reader.  Historical  errors,  into  which  Lord  Coke,  Black- 
stone,  and  other  legal  text-writers  have  fallen,  while  de- 
scribing the  primitive  condition  of  our  institutions  and 
jurisprudence,  are  tacitly  corrected  under  the  light  of  more 
recent  research.  I  make  no  claim,  of  course,  to  any  orig- 
inality of  historical  investigation;  but  I  think  that  the 
reader  and  student  will  here  find  many  facts  concerrung 
the  origin,  progress,  and  nature  of  the  Roman  Law,  and  its 
influence  upon  the  development  of  European  civilization 
during  the  Middle  Ages,  concerning  the  Saxon  polity  and 
institutions,  the  institutions  and  codes  of  the  Germanic 
tribes  who  overthrew  the  western  Roman  Empire,  the 
origin,  development,  and  nature  of  Feudalism,  and  concern- 
ing the  effect  of  all  these  social  forces  upon  the  English 
institutions  and  jurisprudence,  which  he  must  otherwise 
learn  from  the  elaborate  treatises  of  German  and  French 
jurists,  and  from  the  works  of  the  ablest  modern  English 
scholars. 

It  is  also  proper  to  say  that  no  other  work  in  our  lan- 
guage, with  which  I  am  acquainted,  attempts  to  give  in  so 
full  and  systematic  a  manner  the  true  rationale  of  the 
law  as  created  by  judicial  decision;  to  explain  the  powers 


PREFACE  TO   THE   SECOND   EDITION.  Vll 

of  judges  as  legislators,  and  their  mode  of  operation  in 
enacting  a  system  of  legal  rules  by  means  of  successive 
decided  cases;  to  describe  the  large  portion  of  our  juris- 
prudence gradually  constructed  in  this  manner  by  the  legis- 
lative action  of  the  judiciary;  and  especially  to  point  out 
the  striking  analogies  between  the  functions  and  methods 
of  our  courts  in  thus  developing  the  common  law  and 
equity,  and  those  of  the  Roman  praetors  and  magistrates 
in  developing  the  Roman  law  by  means  of  their  successive 
edicts.  It  is  certainly  remarkable  that  the  standard 
English  legal  text-writers  have  either  wholly  ignored  or 
completely  misrepresented  this  peculiar  element  of  our 
jurisprudence,  which  more  than  anything  else  has  ren- 
dered it  capable  of  a  constant  and  uniform  improvement, 
and  which  distinguishes  it  from  the  jurisprudence  of  the 
continental  nations  of  Europe.  Jeremy  Bentham,  it  is 
true,  recognized  the  fact  of  such  a  peculiar  feature  be- 
longing to  the  English  law;  but  his  shallow  criticism  failed 
to  comprehend  its  real  nature,  and  only  condemned  and 
ridiculed  -it  under  the  disparaging  name  of  "judge-made 
law."  Austin,  who  was  in  some  respects  a  disciple  of 
Bentham,  but  who  was,  unlike  his  master,  a  profoundly 
able  and  scholarly  jurist,  fully  appreciated  the  legislative 
functions  of  the  courts,  and  the  fact  that  they  have  built 
up  a  large  part  of  our  jurisprudence;  but  he  makes  no  at- 
tempt to  give  a  full  explanation  of  the  rationale  of  their 
powers  and  methods  in  creating  the  law  of  judicial  decis- 
ion. Blackstone  explains  the  process  by  gravely  uttering 
the  absurd  fiction  that  the  law  has  existed  from  time  im- 
memorial in  a  complete  and  perfect  condition,  unknown  to 


Vlll  PREFACE   TO   THE   SECOND   EDITION. 

the  mass  of  mankind,  but  in  some  unaccountable  manner 
preserved  in  the  knowledge  of  the  courts,  and  that  the 
judges  have  revealed  or  declared  it  to  the  world  from  time 
to  time  as  the  necessities  of  litigants  required. 

The  opinions  maintained  in  this  portion  of  the  book,  as 
to  the  superiority  of  the  law  of  judicial  decision  over  that 
of  codes,  is  so  opposed  to  much  of  the  tendency  of  modern 
thought  and  practice,  that  a  few  words,  in  this  connection, 
by  way  of  comment  upon  my  positions,  may  be  permitted. 
It  is  true  that  codification  has  many  advocates  among  able 
members  of  the  English  Bench  and  bar,  who  have  been  in- 
fluenced partly  by  the  teachings  of  Austin,  and  partly  by 
the  example  of  the  continental  nations  of  Europe.  This 
tendency  has  expressed  itself  in  complete  codes  enacted 
for  the  British  East  India  dominions,  some  of  which  per- 
haps approach  as  near  as  possible  to  the  ideal  of  a  perfect 
code.  In  our  own  country,  the  practical  effects  of  the 
tendency  are  more  plainly  exhibited.  In  addition  to  the 
ordinary  forms  of  statutory  legislation  covering  entire  de- 
partments of  the  law,  more  than  half  of  the  states  and 
territories  have  adopted  codes  of  civil  procedure.  In  Cali- 
fornia the  whole  body  of  the  law  has  'professedly  been  em- 
bodied in  different  codes.  The  example  of  California  has 
been  followed  in  one  or  two  other  commonwealths ;  and  it 
seems  probable  that  New  York  will  soon  adopt  a  similar 
system,  or  at  least  a  similar  civil  code. 

No  writer  has  more  earnestly  than  myself  advocated  the 
essential  elements  and  fundamental  principles  of  the  re- 
formed procedure,  and  I  have  seen  no  reason  to  retract  or 
modify  those  opinions.     A  reform  accepted  by  so  many 


PREFACE  TO  THE   SECOND  EDITION.  IX 

American  states,  by  British  colonial  dominions,  and  by  the 
English  Bar,  Judiciary,  and  Parliament,  must  have  inlier- 
ent  and  surpassing  merits.  But  a  code  of  procedure,  enact- 
ing every  minute  rule  of  practice,  pleading,  and  evidence 
into  the  iron  form  of  a  statute,  is  a  very  different  thing. 
Under  such  a  system  the  courts  have  no  freedom  to  adapt 
the  rules  of  practice  to  the  extraordinary  circumstances  of 
individual  cases,  in  order  to  promote  justice,  and  as  a  con- 
sequence gross  injustice  is  often  done  to  suitors  by  decis- 
ions rendered  upon  most  trivial  matters  of  form  not  in  the 
slightest  affecting  the  merits.  When  every  step  in  a  cause, 
every  proceeding  on  the  trial,  and  even  the  order  in  which 
such  proceedings  shall  be  taken,  are  prescribed  in  the  most 
minute  and  detailed  manner  by  statute,  the  inevitable  ten- 
dency of  the  courts  is  to  regard  and  treat  these  statutory 
rules  as  imperative  and  compulsory.  It  may  be  answered 
that  such  statutory  provisions  are  simply  directory,  and 
their  violation  is  not  error;  but  experience  shows  that 
courts  do  not  and  can  not  escape  from  the  tendency  to  deal 
with  such  statutory  requirements  as  obligatory,  no  matter 
how  purely  formal  they  may  be,  and  to  hold  that  any  de- 
parture from  them  is  error  invalidating  the  decision  or 
judgment,  and  demanding  a  reversal  or  a  new  trial.  My 
limits  do  not  permit  me  to  illustrate  this  statement  by  act- 
ual examples;  but  an  examination  of  the  reports  will  show 
most  clearly,  that  in  some  of  the  states  which  have  adopted 
these  elaborate  codes  of  procedure,  the  anticipated  result  of 
the  reform,  viz.,  the  decision  of  all  causes  upon  their  merits 
alone,  is  very  far  from  being  attained.  In  my  opinion  the 
reform  was  more  wisely  carried  on  in  England;  the  few 


X  PREFACE  TO  THE  SECOND   EDITION. 

essential  elements  and  general  principles  of  the  new  sys- 
tem only  were  embodied  in  the  statute;  the  great  mass  of 
special  rules  governing  the  practice  was  left  for  the  courts  to 
establish,  so  that  they  should  preserv^e  their  elasticity,  and 
be  applied  by  the  judges  for  the  furtherance  of  justice  in 
all  possible  circumstances.  The  legislature  of  Connecticut, 
on  the  recommendation  of  leading  members  of  the  state  Bar, 
has  recently  accepted  the  English  system  in  all  of  its  sub- 
stantial features. 

It  is  perhaps  inevitable  that  the  system  of  codifying  the 
private  civil  jurisprudence — the  common  law  and  equity — 
shall  finally  prevail  in  this  country  and  in  England.  One 
fact,  however,  is  true,  if  any  certain  conclusion  can  be 
drawn  from  both  reasoning  and  experience.  The  benefits 
which  are  claimed  for  the  system  of  codification  avowedly 
belong  only  to  a  complete  code — a  code  which  shall  embody 
the  entire  existing  civil  jurisprudence  of  the  state,  absolutely 
all  of  the  legal  rules  which  are  recognized  as  operative, 
whether  originally'-  created  by  statute  or  by  judicial  decision. 
Such  a  code  should  cover  the  whole  domain  of  civil  juris- 
prudence, so  that  courts  should  find  in  it  the  source  of  all 
their  decisions,  and  should  never  be  obliged  to  go  behind  it 
and  borrow  a  rule  from  the  pre-existing  common  law  or 
equity.  Austin,  who  is  the  leading  advocate  of  codification 
among  the  English  jurists,  bases  all  his  reasoning  upon  such 
a  complete  and  exhaustive  code ;  but  while  holding  it  up  as 
an  ideal,  he  fully  admits  the  great  difficulty  of  framing  a 
code  which  shall  at  all  fulfil  the  conception  and  produce  its 
anticipated  benefits.  It  seems  to  me  that  reasoning  and 
experience  alike  show,  that  a  mere  partial  civil  code,  a  code 


PREFACE  TO  THE   SECOND   EDITION.  XI 

which  only  professes  to  contain  elementary  definitions,  the 

most  general  doctrines,  and  a  few  special  rules,  leaving  the 

great  mass  of  practical  rules  and  doctrines  still  existing  as 

a  part  of  the  common  law  and  equity  by  its  side,  is  only  an 

additional  source  of  uncertainty  and  confusion  introduced 

into  the  iurisprudence  of  a  state. 

J.  N.  P. 

San  Fkancisco,  February  8th,  18S3. 
Hastings  College  of  tlie  Law. 


PREFACE. 


This  work  is  intended  primarily  for  the  use  of  students 
in  higher  schools  and  colleges,  and  of  those  readers  who 
wish  to  obtain  some  knowledge  of  the  spirit  of  our  munici- 
pal law,  but  have  no  desire  to  pursue  the  study  profession- 
ally. Its  object,  therefore,  is  not  to  take  the  j)lace  of  the 
standard  treatises  of  Sir  William  Blackstone,  of  Chancellor 
Kent,  or  of  other  authors,  but  to  supply  a  need  for  which 
those  commentaries  were  never  designed. 

Beyond  all  doubt,  the  study  of  History  and  of  Politics  is 
too  much  neglected  in  most  of  our  higher  educational  institu- 
tions. The  instruction  given  in  legal  science  is  generally  con- 
fined to  a  few  lectures  upon  the  Constitution  of  the  United 
States ;  while  the  great  body  of  our  municipal  law,  which 
is  meeting  us  at  every  side  in  actual  life,  is  passed  by  as 
something  foreign  to  the  purposes  of  a  liberal  education. 

It  cannot  be  denied  that  this  is  a  great  defect  in  the 
courses  of  study  adopted  in  most  of  our  colleges.  So  much 
is  demanded  from  the  educated  men  of  our  country  ;  our 
form  of  government,  political  ideas,  jurisprudence,  and  civ- 
ilization are  so  completely  the  product  of  the  past,  that  an 
intimate  acquaintance  with  history  would  seem  to  be  an  es- 

( xiii ) 


xiv  PREFACE. 

sential  element  in  the  education  of  American  citizens.  Es- 
pecially is  this  true  of  that  portion  of  history  which  em- 
bodies the  origin  and  development  of  the  national  jurispni- 
dence.  Both  the  external  form  and  the  animating  spirit  of 
our  municipal  law  are  sucli,  that  it  cannot  be  compressed 
into  a  short  and  precise  statement  of  rules,  and  ^thus  be 
made  readily  accessible  to  the  whole  people.  Its  character 
and  that  of  our  language  are  very  similar.  The  germs  of 
both  are  found  among  peoples  widely  scattered  and  differ- 
ent ;  both  have  been  powerfully  affected  by  the  union  of 
several  races  into  one  nationality  ;  both  have  steadily  devel- 
oped, and  are  constantly  changing ;  and  in  both  an  un- 
broken chain  connects  the  forms  and  principles  of  to-day 
with  those  of  the  most  remote  periods. 

The  general  student,  then,  whether  still  within  the  se- 
clusion of  a  college,  or  engaged  in  the  active  duties  of  life 
and  burdened  with  the  grave  responsibilities  of  citizenship, 
does  not  need  a  mere  synopsis  and  outline  of  the  various 
rules  which  form  the  body  of  the  municipal  law  as  it  is 
now  administered.  In  connection  with  this  more  practical 
knowledge,  he  should  be  led  to  study  our  legal  systen^  as  a 
whole  ;  to  mark  those  forces  which  have  moulded  it,  and, 
through  it,  the  civilization  of  the  nation  ;  to  investigate  the 
character  of  the  influences  now  at  work  upon  it ;  to  exam- 
ine its  peculiar  form  of  growth  ;  to  compare  it  in  these  re- 
spects with  the  legislation  of  other  countries ;  and  thus  to 
be  able  to  weigh  its  excellences  and  defects,  and,  in  his  ca- 
pacity as  citizen,  to  do  whatever  is  possible  toward  its  im- 
provement and  final  perfection. 

This  result  has  been  kept  constantly  in  view  in  the  prep- 
aration of  the  present  work,  although  I  am  painfully  con- 


PREFACE.  XV 

scious  that  the  execution  falls  far  short  of  the  purpose. 
The  general  divisions  of  the  subject,  which  are  quite  difi'er- 
ent  from  those  contained  in  professional  text  books,  are 
made  to  lead  the  reader  in  what  I  conceive  to  be  a  natural 
order  ;  showing  to  him,  first,  tlie  external  forms  of  the  law, 
and  the  various  means  by  which  its  rules  become  cloth- 
ed with  a  compulsive  character ;  secondly,  the  national 
sources  from  which  many  of  its  more  important  principles 
have  been  drawn  ;  and,  finally,  a  general  outline  of  its  posi- 
tive rules  which  relate  to  private  rights.  In  this  outline  I 
have  dwelt  with  some  fulness  upon  the  status  of  persons, 
and  upon  personal  rights,  because  among  these  are  found 
most  of  the  important  questions  involved  in  our  National 
and  State  Constitutions,  which  afiect  the  welfare  of  individ- 
ual citizens.  The  whole  subject  of  the  criminal  law,  how- 
ever, is  omitted,  because  its  rules  are  generally  based  upon 
statutes,  and  are  therefore  very  diflerent  in  the  several 
States,  and  because  the  limits  of  the  work  forbade  any  fur- 
ther addition. 

In  preparing  the  first  and  second  parts,  I  have  consulted 
a  large  number  of  works  of  the  highest  authority,  and  a  list 
of  the  most  important  of  these  is  given  at  the  close  of  this 
preface.  In  the  chapters  upon  the  Anglo-Saxons,  the 
Feudal  System,  and  the  Roman  Law,  while  I  claim  no 
merit  but  that  of  careful  study  and  compilation,  I  think 
there  will  be  found  in  a  short  space,  the  substance  of  what 
is  elsewhere  scattered  through  many  and  expensive  vol- 
umes. If  this  work  should  be  thought  too  extended  to  be 
used  entire  as  a  text  book,  some  of  these  chapters  may  be 
omitted  ;  although  a  study  of  the  feudal  system  is  absolute- 
ly necessary,  and  of  the  Eoman  jurisprudence  greatly  ad- 


Xvi  PREFACE. 

vantageous,  to  a  comprehension  of  the  genius  of  our  own 
municipal  law. 

While  the  work  is  primarily  designed  for  general  stu- 
dents and  readers,  I  hope  that  some  portions  of  it,  at  least, 
will  be  found  instructive  to  professional  students  and  prac- 
tising la^vyers.  To  the  former,  the  first  and  second  parts 
will  be  a  proper  introduction  to  the  reading  of  Kent  and 
Blackstone,  and  part  third  will  present  a  bird's-eye  view  of 
the  whole  ground  which  they  are  to  examine  more  closely 
and  thoroughly  in  their  preparatory  training. 

The  copious  table  of  contents  is  intended,  not  simply  as 
a  means  of  reference,  but  as  a  complete  analysis  of  the 
whole  book,  and  of  each  chapter,  and  as  such  will  be  an  im- 
portant help  both  to  teachers  and  students. 

I  have  not  cited  authorities  in  support  of  the  various 
statements  and  propositions  contained  in  the  text,  for  the 
work  has  no  claim  to  be  one  of  original  research,  nor  is  it 
intended  for  use  as  a  lawyer's  handbook.  For  the  conve- 
nience of  those  readers  who  may  wish  to  pursue  their  inves- 
tigations upon  any  subject,  and  to  test  the  results  given  in 
the  text  by  standard  authorities,  I  add  a  list  of  such  of  the 
works  consulted  by  me,  as  are  not  ordinary  legal  text  books. 
In  relation  to  the  early  periods  of  tlie  English  common- 
wealth, and  the  institutions  of  Western  Europe  during  the 
middle  ages — "  The  Rise  and  Progress  of  the  English  Com- 
monwealth :  the  Anglo-Saxon  Period,"  by  Sir  Francis  Pal- 
grave  ;  "  The  Saxons  in  England,"  by  John  Mitchell  Kem- 
ble  ;  "  History  of  England  under  the  Anglo-Saxon  Kings," 
by  Prof.  J.  M.  Lappenberg,  translated  by  Benjamin  Thorpe ; 
"  An  Enquiry  into  the  Rise  and  Growth  of  the  Royal  Pre- 
rogative," by  J.  Allen  ;  "  History  of  the  Anglo-Saxons,"  by 


PEEFACE.  XVll 

Sharon  Turner  ;  "  Ancient  Laws  and  Institutes  of  England," 
containing  a  collection  of  Saxon  codes  ;  "  History  of  Civili 
zation  in  France,"  by  M.  Guizot ;  "  History  of  Representa- 
tive Government,"  by  M.  Guizot ;  "  Yiew  of  Society  in 
Europe,"  by  Gilbert  Stuart ;  "  History  of  the  Norman  Con- 
quest," by  M.  Thierry  ;  Eobertson's  "  Charles  Y. ;  "  Sulli- 
van's "  Lectures  on  Feudal  Law  ;  "  "  History  of  the  Equi- 
table Jurisdiction  of  the  Court  of  Chancery,"  by  G.  Spence ; 
"  Histoire  du  Droit  Remain  au  moyen  Age,"  C.  von  Sa- 
vigny,  traduit  de  I'Allemand ;  "  Ancient  Law  :  Its  Connec- 
tion with  the  Early  History  of  Society,  and  its  Relation  to 
Modern  Ideas,"  by  Henry  Sumner  Maine. 

Relating  to  the  Roman  law  :  "  A  History  of  the  Roman 
Law,"  translated  into  French  from  the  German  of  Prof.  G. 
Hugo ;  Mackeldy's  "  Roman  Law,"  translated  from  the 
German  by  Kaujffman ;  "  Horae  JuridicoB,^^  by  Charles 
Butler  ;  "  Histoire  de  la  Legislation  Romaine,"  par  J.  L.  E. 
Ortolan ;  "  De  I'influence  du  Christianisme  sur  le  Droit  civil 
des  Remains,"  par  R.  T.  Troplong ;  Niebuhr's  "  History  of 
Rome ;  "  Arnold's  "  History  of  Rome." 

J.  N.  P. 

December  22d,  1863. 


OOINTTENTS. 


INTRODUCTORY   CHAPTER. 

8ECTI0K 

General  description  of  the  science  of  Law 1 

General  reasons  for  its  study 2 

Particular  reasons  for  its  study  by  educated  Americans 3-6 

Kind  of  study  required 7 

Purely  professional  text  books  not  adapted  to  the  study  of  law  as  a  part  of 

a  liberal  education 8 

Object  of  this  work 9 

Every  municipal  law  is  a  compound  of  ethics  and  history 10 

A  spirit  of  justice  and  equity  is  in  some  degree  necessary  to  a  system  of  laws,  11 
As  a  people  advances  in  civilization,  its  law  more  nearly  agrees  with  natural  law,  1 2 
No  legal  system,  however,  claims  to  be  in  exact  agreement  with  pure  morality. 

The  national  history,  and  institutions  invariably  make  modifications  in 

the  simple  rules  of  right 13,  14 

The  study  of  law  then  includes  much  of  history 15 

Municipal  law  is  that  of  a  separate  State 16 

Definition 17 

General  divisions,  having  reference  to  the  subject  matter 18 

Viz.  I.  Political  Law 19,  20 

n.  Private 21 

Divisions  of  Private  Law  into — 

1.  Civil  Law 22 

2.  Criminal  Law 23 

Divisions  of  the  Civil  Law,  into  that  which  relates,  1st,  to  persons  generally ; 

2d,  to  particular  classes  of  persons  ;  3d,  to  things 24 

The  law  in  regard  to  things  again  divided :  1st,  that  relating  to  personal  prop- 
erty ;  2d,  that  relating  to  contracts  and  obUgations ;  3d,  that  relating 
to  lands 26 

Municipal  Law  may  be  divided  in  respect  to  its  national  origins 26 

(xix) 


XX  CONTENTS. 

BKOnON 

Components  of  the  English  people 27 

Divisions  of  English  and  American  Municipal  Law,  having  reference  to  na- 
tional sources  of  origin : 

L  Saxon  and  other  Germanic  tribal  customs 28 

n.  The  Feudal  System 29 

in.  Maritime  Codes  of  the  Middle  Ages 80 

rV.  Roman  Jurisprudence 31-33 

V.  The  demands  of  a  Progressive  Civilization 34 

Divisions  of  the  Municipal  Law,  having  reference  to  its  methods  of  promul- 
gation    36 

L  The  Statute  Law 36 

IL  The  Unwritten  Law 37,  38 

The  Unwritten  Law  the  product  of  Courts 39 

General  Classes  of  Courts 40 

1.  The  Common  Law  Courts 41,  42 

2.  Courts  of  Equity 43 

3.  Ecclesiastical  Courts 44 

4.  Admiralty  Courts 45 

General  Powers  of  Courts  in  the  United  States 46 

The  eifect  of  the  action  of  Courts  upon  the  law 47 

Some  of  the  respective  advantages  and  disadvantages  of  these  two  forms  of 

Mimicipal  Law 48-54 

General  divisions  of  this  work 55 


PART  FIRST. 

THB   LAW   IN   ITS   MODAL   OHAEAOTEE  :    ITS  MEANS,  METHODS  AND 
FORMS    OF    DEVELOPMENT. 

CHAPTER  L 

STATUTES. 

General  resemblance  among  the  external  forms  of  legislation  in  nations  of 

Europe " 56,  67 

While  similar  elements  have  been  at  work  in  each,  they  have,  however, 

worked  unequally 68 

The  division  of  the  Municipal  Law,  into  Statute  and  Unwritten,  or  the  Law 

of  definite  Enactment  and  that  of  Judicial  decision,  common  to  all. . . .  59 

Sources  whence  Statutes  originate 60 

Viz. :  1st,  General  Assemblies  of  citizens ;  2d,  Representative  Assem- 
blies ;  3d,  Kings 61 

General  Assemblies,  not  in  use  in  modern  times 62 

Common  in  ancient  times ;  reason  for  their  disuse 63 

Use  among  the  Romans 64 


CONTENTS.  XXI 

SECTION 

Representative  Assemblies  common  in  all  times 66 

Roman  Senate "" 

English  Parliament  and  American  Congress  and  Legislatures  ;  points  of 

resemblance  and  contrast 67-7  -/ 

The  power  of  the  Executive  ;  he  is  really  a  coordinate  branch  of  the 

legislature "^ 

American  constitutional  conventions "•* 

Kings  as  sources  of  statutes '  ^ 

Power  of  the  Roman  emperor ^^ 

"Constitutions"  or  statutes  of  Roman  emperor;  their  classes  and  au- 
thority       • ' 

The  wiU  of  the  Roman  emperor,  at  least  so  far  as  related  to  private  law, 

not  exercised  arbitrarily 78 

Brief  statement  of  the  power  of  other  national  monarchs 79 

Power  of  British  Crown ^^ 

Power  of  American  president °1 

Conclusion  of  this  branch  of  the  subject 82 

Divisions  of  Statutes  in  respect  to  their  forms 83 

1.  Those  enacted  from  time  to  time,  and  relating  to  a  single  subject. .     84 
Some  important  annual  statutes ;  the  supply  bills ;  constitutional 

power  of  English  House  of  Commons  and  American  House  of 

Representatives,  over  supplies 85 

Difficulties  from  the  multiplication  of  single  statutes 86 

2.  Statutes  in  the  form  of  General  Codes 87 

Codes  generally,  or  always,  digests  of  preexisting  law 88 

Examples  of  Codes,  Roman  XII.  tables 89,  90 

Codes  of  Justinian 91 

"      "  France 92,  93 

"      "  other  European  States 94 

"      "  Louisiana 95 

Partial  codification ;  Revised  Statutes  of  New  York 96,  97 

CHAPTER  II. 

THE    UNWRITTEN    LAW,   OR    LAW    OF    JUDICIAL    DECISION  :     ITS    MEANS    AND 
INSTRUMENTS    OF    DEVELOPMENT. 

General  statement  of  the  method  by  which  the  Unwritten  Law  is  promulgated,     98 
SECTION  I.-DIVISIONS  OF  THE  SUB-JECT. 

Two  classes  of  questions  presented  for  decision  in  legal  controversies :  those 

of  fact  and  those  of  law 99 

Two  classes  of  Courts,  those  in  which  both  questions  are  committed  to  the 

same  judges,  and  those  in  which  they  are  given  to  different  judges. . .   IOC 

Methods  of  bringing  these  questions  before  the  Courts 101 


XXU  CONTENTS. 

BEOTIOK 

General  character  of  judicial  procedure 102 

General  divisions  of  this  chapter 103 

SECTION  II.-OF  THE  SEPARATION   OF  QUESTIONS  OF  LAW  FKOM 
THOSE  OF  FACT,  AND  HEREIN  OF  THE  JURY  TRIAL. 

Modern  jury  trial  of  English  origin 104 

Two  distinct  elements  in  the  idea  of  modern  jury  trial ;  each  of  these  has 

entered  into  the  jurisprudence  of  other  countries 105 

A  sketch  of  the  Roman  procedure  in  separating  questions  of  fact  from  those 

of  law 106,  lOY 

The  Romans  did  not  commit  the  decision  of  such  questions  to  men  drawn 

from  the  great  body  of  the  citizens 108 

Final  abandonment  of  the  system  in  Rome 109 

The  element  of  modern  jury  trial  which  requires  that  jurors  be  chosen  from 

the  people  at  large  is  of  Germanic  origin 110 

Freemen  and  their  courts,  among  the  ancient  Franks,  Lombards,  Saxons, 

and  other  Germanic  tribes 111-114 

These  folk  courts  among  the  Saxons  were  the  germ  of  the  modern  English 

and  American  idea  of  calling  in  the  people  to  decide 115 

Reason  why  the  same  causes  did  not  result  in  the  permanent  jury  trial  in  other 

European  nations,  viz.,  the  contiguity  and  influence  of  the  Roman  law. .    116 

This  cause  did  not  operate  in  Britain 117 

The  general  progress  from  Saxon  folk  courts  to  modern  jury  trial 118 

The  use  of  compurgation,  or  the  oaths  of  a  definite  number  of  witnesses  to 

determine  a  trial  among  the  Saxons  and  other  Germans 119-124 

Second  step :  trial  by  recognitor.?,  or  witnesses  of  the  transaction,  or  persons 

having  a  knowledge  of  the  facts  in  dispute,  who  were  summoned  from 

the  neighborhood 125,  126 

All  subsequent  steps  were  means  to  aid  this  body  of  freemen  by  the  testi- 
mony of  other  persons 12*7 

They  were  allowed  to  obtain  knowledge  by  enquiry 12S 

Other  witnesses  were  joined  to  them  who  could  testify  as  to  facts,  and  who 

took  a  part  in  the  decision 129 

Other  witnesses  were  joined  to  them  who  could  testify  as  to  facts,  but  who 

took  no  part  in  the  decision 130 

The  evidence  was  afterward  required  to  be  ofiercd  to  them  in  open  court 

before  the  judges 131 

The  rule  rcquiiing  the  jurors  to  be  summoned  from  the  neighborhood  was 

finally  abolished,  and  the  modern  jury  trial  was  complete 132 

The  institution  is  then  of  a  composite  origin 133 

General  organization  of  juries  in  England  and  America 184 

Unanimity  in  the  verdict 135 

Merits  of  the  jury  trial ICti,  137 


CONTENTS.  XXIH 

SEOTIOK 

Growing  disposition  in  England  and  America  to  abandon  it 138 

The  jury  introduced  into  some  ottier  European  countries 139 

SECTION  III.— THE  ORIGIN,  HISTORY,  AND  JURISDICTION  OF  THE 

ENGLISH  AND  AMERICAN  JUDICIARY. 

Classes  of  Courts 140 

I.  OF  THE  SUPERIOR  LAW  COURTS. 

The  ?axon  local  Courts 141 

American  town  meetings 14!s 

Manor  Courts 14S 

The  Saxon  General  Council 144 

Idea  of  an  empire  introduced  by  the  Normans,  and  consequent  increase  in 

importance  of  the  King's  Council 145 

Changes  made  by  William  I. ;  County  Courts  left  existing ;  a  chief  justiciary 

appointed  for  the  King's  Council ;  ecclesiastical  affairs  committed  to 

the  bishops 146 

Establishment  of  the  Court  of  Exchequer 14Y 

Progress  of  business  in  King's  Council  to  1154 148 

Changes  made  by  Henry  II.     Appointment  of  itinerant  justices  in  place  of 

County  Courts 149 

Establishment  of  Court  of  Common  Pleas  at  Westminster 150 

The  superior  Courts  settled  in  time  of  Edward  I.  virtually  as  at  present,  viz., 

the  King's  Bench,  the  Common  Bench,  and  the  Exchequer :  powers  of 

each A 151 

Growth  of  jurisdiction  of  the  Court  of  King's  Bench 152 

«'  "  "  "  Exchequer 153 

Composition  of  these  Courts  ;  Courts  of  Picview 154 

Partial  return  in  England  to  the  idea  of  local  Courts 155 

Law  Courts  in  the  United  States. 

United  States  Courts  the  creations  of  constitutions  and  statutes 156 

General  character  of  the  Courts  of  the  several  States 157 

Organization  and  powers  of  the  Federal  Courts 158-162 

II.     OF   THE    COURTS   OF   EQUITY. 

English  Court  of  Chancery 163-165 

Equity  Courts  in  the  United  States.     In  the  several  States 166 

Equity  powers  of  the  Federal  Courts 167 

III.      OF    THE    ECCLESIASTICAL    COURTS. 

Origin  of  these  Courts  in  England 168 

Purely  ecclesiastical  jurisdiction 169 

Secular  jurisdiction 170 

American  Courts  of  Probate,  and  Surrogates 171 


XXIV  CONTENTS. 

IV.     OF   THE    ADMIRALTY   COrRTS. 

BEOTION 

Description  and  jurisdiction  of  these  Courts 172 

Procedure  therein 1*73 

SECTION  IV.— OF  THE  MANNER  IN  WHICH  LEGAL  CONTEOVEESIES  AEE 
BROUGHT  BEEOEE  COUETS,  AND  BY  THEM  TEIED  AND  DECIDED. 

Some  fixed  rules  of  judicial  procedure  necessary 174 

Natural  and  necessary  progress  of  legal  forms 175 

I.     THE    ROMAN   PROOEDURB. 

Primitive  forms  of  action 177 

Commencement  of  the  action  and  proceedings  against  the  judgment  debtor,  178 

Gradual  progress  from  these  arbitrary  forms 179 

The  Roman  Lex  Civilis  and  the  modifications  made  in  it  by  the  Praetors, . .  180 

These  modifications  were  introduced  by  new  forms  of  action 181 

The  substitution  of  "  Formulas"  for  the  old  "  Actiones  Icgis" 182 

The  proceedings  in  a  formula 188 

What  diflerenced  various  formulas 184 

Division  of  actions  into  "  Real "  and  "  Personal " 185 

Actions  stricti  juris 186 

Necessity  for  improvements  in  these  actions  :  these  made  by  Praetors 187 

Actions  bonce  fidei 188 

"      prcescriptis  verbis 189 

"       in  factum 190 

Interdicts 191 

Importance  of  this  subject 192 

English  judicial  procedure 193 

I   ,     OF  THE  ORIGIN,  CLASSES,  AND  USES  OF  ACTIONS   IN   COURTS  OF   LAW. 

1.    Civil  Actions. 
Definition  of  Action.     Originally  the  king  was  considered  as  the  source  of 
justice ;  all  actions  were  commenced  by  a  King's  Writ ;  description  of 

these 194 

Commencement  of  actions  in  the  United  States  ;  recent  changes 1 95 

When  forms  of  action  were  introduced  into  England 196 

Primitive  divisions  of  actions  into  "  Real "  and  ''  Personal " 197 

The  original  personal  actions,  viz. :  Debt,  Covenant,  Trespass,  and  Detinue,  198 
Extent  to  which  these  actions  could  be  used ;  cases  in  which  they  were  use- 
less; need  of  improvement 199 

Statute  of  Edward  I.,  allowing  new  forms  of  writs  to  be  made 200 

Extension  of  Trespass  to  cases  of  "malfeasance"  and  "misfeasance,"  and 

the  judicial  invention  of  "  Trespass  in  the  Case  " 201 

Further  extension  to  cases  of  "  nonfeasance,"  and  the  judicial  invention  of 

the  action  of  "  Assumpsit " 202,  203 


CONTENTS.  XXV 

SECTION 

The  judicial  invention  of  the  actions  of  "Trover"  and  "Ejectment,"  and 

description  of  their  uses 204 

List  and  description  of  actions  in  use  in  the  English  procedure 205 

These  actions  adopted  in  the  United  States ;  recent  legislation  has  abolished 

them  in  many  States .  206 

These  actions  were  invented  to  promote  justice,  and  facilitate  judicial  business,  20*7 

Pleadings  used  in  these  actions 208-210 

Abuses  of  the  forms  of  pleading 211 

Modern  reforms  in  America 212 

2.    Criminal  Actions, 

Commencement  of  criminal  actions — the  Indictment 213 

General  requisites  of  the  indictment 214 

Criminal  proceedings  unaltered 215 

"  "  in  Bavaria 216 

"  "  in  Prance 217 

III.      OF   THE    ORIGIN    AND   USE    OF   ACTIONS    IN    COURTS   OF   EQUITY. 

Eeasons  why  equitable  rules  grew  up  to  supplement  those  used  in  the  Law 

Courts 218,  219 

Eeasons  why  the  I^aw  Courts  could  not  easily  supply  the  defects  in  their 

system 220-223 

Instances  of  defects,  ard  remedies ;   relief  against  a  bond  already  paid, 

without  a  release 224 

Relief  against  an  instrument  executed  by  mistake 225 

"      by  injunctions 226 

"      in  taking  accounts 227 

"      by  enforcing  Trusts 228 

Equity  grew  to  be  a  complete  system 229 

How  the  consideration  of  these  questions  came  to  be  referred  to  the  Chan- 
cellor     230 

Why  the  forms  of  action  in  the  Law  Courts  were  unsuited  to  the  Equity 

Courts 231 

Form  of  action  ;  the  Bill  of  Complaint  of  the  plaintiff 232 

The  Answer  of  the  defendant 238 

IV.      or   THE    METHOD    OF    ASCERTAINING    THE    FACTS    IN    A    JUDICIAL    TRIAL 
BY    EVIDENCE. 

1.    In  Civil  Actions. 
In  general,  witnesses  must  be  examined  and  cross-examined  in  open  Court : 

practice  in  Equity  Courts 285 

Who  could  not  be  witnesses  by  the  old  law  :  parties  and  persons  pecuniarily 

interested 236 

Husband  and  wife  could  not  be  witnesses  for  or  against  each  other 237 


XXVI  CONTENTS. 

BEOnOH 

Late  changes  in  England  and  some  American  States :  persons  interested, 

parties,  and  iiusband  and  wife  admitted 238 

Reasons  for  this  change 239 

General  principles  relating  to  the  substance  of  evidence  admissible  on  trials ; 

their  character 240 

Distinction  between  competent  and  credible  evidence 241 

Classes  of  evidence :  Oral  and  Written,  Direct  and  Presumptive 242 

What  evidence  must  be  written  ;  Statute  of  Frauds 243 

Written  evidence  cannot  be  altered  by  oral  testimony 244 

Direct  evidence 246 

Presumptive  evidence 246 

Presumptions  of  fact 247 

"  of  law 248,  249 

General  rules  regulating  the  introduction  of  evidence  on  trials 250 

2.  In  Criminal  Actions, 

General  character  of  the  rules  of  criminal  evidence ;  constitutional  rights 

protected  by  them ' 251 

Presumption  at  the  basis  of  criminal  evidence,  viz. :  every  person  is  pre- 
sumed to  be  innocent  until  proven  guilty  ;  meaning  of  this 252 

Three  elements  in  proving  a  criminal  charge  ;  the  corpus  delicti 258 

Kind  of  evidence  to  prove  the  physical  connection  between  the  accused  and 

the  crime 254 

Circumstantial  evidence  used  in  this 255,  256 

Restriction  on  the  use  of  this  evidence :  must  be  confined  to  the  subject  in 

question 257 

Comparison  in  this  respect  between  the  English  or  American  system  and 

that  of  European  nations 258 

Proof  of  the  guilty  intent  and  of  motive 259,  260 

Prisoner  need  not  criminate  himself;  cannot  be  examined  as  a  witness. . . .  261 

Unreasonableness  of  this  rule 262 

Rules  of  Evidence  in  German  Criminal  Trials 263 

Corpus  delicti  must  be  absolutely  established 264 

Classes  of  witnesses 266 

Weight  given  to  the  testimony  of  various  classes  of  witnesses 266 

Nature  of  the  evidence  admitted  to  charge  the  accused 267 

Proceedings  of  examining  judge  in  collecting  evidence 268 

Examination  of  the  prisoner :   its  nature 269 

Confronting  the  prisoner  with  other  witnesses 270 

Confession  of  prisoner :  its  nature 271 

Effect  of  this  examination  of  the  prisoner  to  produce  a  confession 272 

General  character  of  these  methods 278,  274 

Decision  of  the  cause  before  other  judges  than  those  who  take  the  evidence,  276 


CONTENTS.  XXVll 

BECnON 

Comparison  between  English  and  German  methods 276 

The  Fi'ench  criminal  procedure 277,  278 

T.     OF   THE  JUDGMENT  AS   THE    RESULT    OF   THE    DECISION    OF    THE   FACTS  AND 
THE    LAW. 

The  facts  must  be  ascertained  before  the  law  is  applied 279 

Special  verdict  of  a  jury 280 

Charge  of  the  judge  and  general  verdict  of  the  jury 281 

Action  of  judges  who  decide  both  facts  and  law 282 

Provision  for  a  review  of  the  decision  of  judge  at  trial 28S 

Decision  of  the  Superior  Courts  fixes  the  law 284 

Effect  of  the  judgment,  and  how  enforced 286 


CHAPTER  m. 

THE  UNWRITTEK   LAW,  OR  LAW  OF  JUDICIAL  DECISION  :    ITS   FORMS,  METHODS, 
AND* SPIRIT    OF    DEVELOPMENT. 

Legal  development  common  to  all  systems  of  national  law,  and  intimately 

connected  with  progress  in  civilization 286-288 

The  law  has  been  developed  in  all  countries  by  statutes  and  by  judicial  de- 
cisions or  their  equivalent ;  this  fact  illustrated  by  Roman,  English, 

and  American  history 289 

The  feudal  system  an  important  element  in  moulding  the  laws  of  modern 

Europe 290 

The  private  law  of  Italy,  Spain,  Germany,  and  France  is  based  principally 
upon  Roman  jurisprudence,    with   additions  from  feudal   and   local 

customs 291 

The  law  of  England  and  America  is  cosmopolitan 292 

Its  sources  are  to  be  found  among  the  Saxons,  feudalism,  and  the  Romans, 

but  chiefly  in  the  demands  of  a  progressive  civilization 298 

Our  municipal  law  has  always  reflected  the  peculiar  character  of  the  na- 
tional culture 294 

The  purpose  of  this  chapter  is  to  illustrate  the  methods  by  which  and  the 

spirit  in  which  the  Courts  have  done  their  part  in  developing  the  law,  295 

Courts  legislate  as  well  as  Parliaments 296 

What  has  been  accomplished  by  Courts  and  Parliaments :  of  this  the  Courts 

have  done  the  greater  part 297 

General  difference  between  the  methods  of  Courts  and  Parliaments 298 

The  distinguishing  characteristics  of  the  functions  and  work  of  a  parliament- 
ary legislator 299 

The  functions  and  methods  of  a  judicial  legislator 300 

The  basis  of  the  action  of  a  Court  in  declaring  the  law  is  the  particular 

facts  of  each  individual  case 301 


XXVlll  CONTENTS. 

SEonoir 
The  Courts  have  been  greatly  influenced  in  determining  the  law  for  cases 
before  them,  by  the  state  of  the  national  civilization  at  the  time  ;  it  is 

here  that  they  have  reflected  that  civilization 302 

Courts  never  assume  to  declare  a  rule  of  law  for  all  cases,  but  only  for  the 
very  one  under  consideration ;  how  this  differences  their  work  from 

that  of  Parliaments 303 

Thus  the  law  of  judicial  decision  grows  smoothly  and  evenly,  and  persons 

are  enabled  to  anticipate  its  conclusions 804 

Courts  are  greatly  controlled  by  precedents :  what  precedents  are,  and  the 

power  of  Courts  over  them 306 

Action  of  the  Courts  when  the  precedent  exactly  applies  to  the  case  under 

consideration  and  is  to  be  followed 306 

Action  in  same  case,  when  the  precedent  is  wrong ;  they  may  overrule  it 

as  a  legislature  repeals  a  statute 307 

Or  they  may  limit  its  application  and  evade  it 308 

Action  of  Courts  when  there  are  no  exact  precedents ;  the  legal  rules  are 

inferred  by  reasoning  from  former  established^principles 309 

General  character  of  the  law  of  judicial  decision  as  compared  with  statutes,  310-312 
Other  nations  of  modern  Europe  have  had  the  same  methods  of  developing 
the  unwritten  law,  but  not  to  the  same  extent  as  in  England  and 

the  United  States ^  . . . .   313 

The  same  method  existed  in  the  Roman  State 314 

Influence  of  Roman  praetors  and  jurisconsults  on  the  development  of  the  law,  315 
English  and  American  text  writers  compared  with  Roman  jurisconsiJts. ...  316 
The  actual  work  of  developing  the  law  of  judicial  decision  fell  on  the 
praetors ;  their  work  was  essentially  the  same  as  that  of  our  judges,  but 

their  methods  different :  description  of  these  methods 317 

The  influence  of  Christianity  on  legal  development 318-323 

Comparative  excellences  of  the  statute  law,  and  law  of  judicial  decision. 
Two  propositions :  1st.  The  law  of  judicial  decision  is  the  better  form  ; 

2d.  It  is  essential  in  a  progressive  people 324 

These  propositions  do  not  depend  upon  each  other S25 

Five  requisites  to  a  perfect  form  of  municipal  law 326 

Comparison  between  the  law  of  judicial  decision  and  statutes  in  respect  to 

the  requisite  of  certainty 327-333 

Comparison  in  respect  to  the  requisite  of  comprehensiveness  or  power  to 
apply  to  relations  yet  to  arise,  as  well  as  to  those  already  pro- 
vided for 334,  338 

Comparison  in  respect  to  the  fixedness  and  elasticity  of  their  rules. . . .  336,  837 

"  "         to  their  power  of  admitting  exceptions 838-341 

"  "'      to  their  unity 842 

Conclusion 348 

Second  proposition — that  the  law  of  judicial  decision  is  necessary  in  all  pro- 
gressive states  of  civilization,  maintained 344-351 


CONTENTS.  XXIX 

SBOnojr 

Comparison  between  written  and  traditional  constitutions 362-354 

Conclusion  of  the  chapter 355 


PART   SECOND. 

NATIONAL   SOtTEOES   OF   ENGLISH  AND  AMERICAN   LAW.    . 

CHAPTER  I. 

THE    ANGLO-SAXON   LAWS   AND   INSTITUTIONS. 

Purpose  of  this  chapter 356 

General  influence  of  the  Anglo-Saxons  upon  our  law 357 

The  Celts  in  Britain 358 

The  Romans  in  Britain 359 

Britain  after  departure  of  Romans  and  before  the  Anglo-Saxon  invasion. . .   360 

Invasion  of  the  Teutonic  nations 361 

Invasion  of  Britain  by  the  Saxons 362 

Object  of  this  chapter 363 

The  Saxon  civilization  not  stationary 364 

I.     OF  PERSONS   AND   THEIR   CLASS   DIVISIONS. 

The  possession  of  land,  and  the  distinction  of  ranli  were  two  fundamental 

elements  in  the  Germanic  institutions 365 

The  division  of  the  "Free"  and  the  "Unfree" 366 

The  " Eorl"  and  the  "  Ceorl " 367 

Rights  of  the  free 368,  369 

Peculiar  rights  of  the  "Eorl " 370 

Tendency  of  these  classes  to  separate 371 

Germs  of  a  class  of  noble  unfree 372 

Growth  of  an  order  of  nobles  by  service  and  decline  of  free  nobles 373 

State  of  society  m  the  later  portions  of  the  Anglo-Saxon  rule 374 

Theows  0  -  serfs 375 

II.      OF    PROPERTY. 

1.    Of  Personal  Property. 

Kinds  of  personal  property  :  quality  of  ownership 376 

Sales 377 

2.    Of  Lands. 

The  primitive  Saxon  settlement :  the  Mark 378,  379 

The  "Hyde"  and  the  "Alod" 380 

The  change  to  lands  held  of  a  superior  lord 381,  382 

"Folk-land"  and  "Boc-land" 383 


XXX  CONTENTS. 

BECTIOW 

Rules  of  inheritance 384 

Transfers  of  lauds 386 

III.     OF  THE   POLITICAL  ORGANIZATION,  THE  GOVERNMENT,  THE    MEANS  OF  ADMINIS- 
TERING JUSTICE,  AND  OF  AFFORDING  PROTECTION  TO  LIFE  AND  PROPERTY. 

1.   Numerical  or  TeiTitorial  Divisions. 

General  character  of  these  divisions 386 

The  Tything 387 

"    Hundred 388 

"    Burgh 389 

"    Shire 390 

2.    The  Sxecutwe  and  Administrative  Officers. 

The  King 391,  392 

His  powers 393 

How  chosen 394 

The  Ealdorman 395 

The  Gerefa 396 

3.    Judicial  and  Administrative  Assemblies. 

The  Hundred  and  Shire  Courts 397 

The  Witena-Gemote 398 

4.    Frank-Pledge. 

Its  general  character 399 

First  kind  :  the  superior  surety  for  his  dependents 400 

Second  "kind  :   the  collective  Frank-pledge 401,  402 

5.    Tlie  Prevention  and  Punishment  of  Crimes. 
General  character  of  methods  for  preventing  and  punishing  crimes ;  pecu- 
niary fines  common  among  all  the  Germanic  nations :  the  "  Wehr " 

and  the  "  Wite  " 403 

Classes  of  crimes 404 

The  "  Feud  "  or  private  warfare 405 

Summary  punishment  allowed  in  certain  cases 406 

How  judicial  proceedings  were  commenced 407 

How  the  attendance  of  the  criminal  was  secured 408 

The  trial :   compurgation  and  the  ordeal 409 

Institutions  borrowed  by  us  from  the  Saxons 410 

The  principle  of  local  self-government 411 

The  Witena-Gemote  developed  to  the  English  Parliament 412 

Jury  trial 413 

Bail 414 

Pecuniary  damages  for  private  wrongs 415 

The  love  of  personal  liberty 416 


CONTENTS.  XXXI 

CHAPTER  II. 

THE     FEUDAL     SYSTEM. 

BBOnON 

Necessity  of  a  knowledge  of  feudal  institutions  to  an  understanding  of 

modern  law 417 

General  character  of  feudal  institutions 418 

"       effect  on  modern  law 419,  420 

Object  of  this  chapter 421 

The  feudal  system  had  its  origin  among  the  German  invaders  of  Western 

Europe 422-424 

They  did  not  bring  the  system  with  them  completed,  but  only  the  seeds  of 

it,  which  were  developed  under  the  new  circumstances  in  which  they 

were  placed 425,  426 

Sir  F.  Palgrave's  opinion  that  the  Germans  borrowed  the  ideas  from  which 

this  system  arose  from  the  Romans , 427 

This  opinion  examined,  and  reasons  in  opposition  to  it 428-432 

Extent  of  the  system  in  the  ninth,  tenth,  and  eleventh  centuries 433 

Description  of  the  Feudal  System  :  its  ideas  and  rules ;  kinds  of  ownership 

in  lands ;  the  allodial 434 

Idea  at  the  base  of  the  feudal  policy ;  double  ownership  in  lands 435 

How  this  divided  ownership  grew  up  among  the  early  Germans ;  grants  of 

benefices 436-439 

These  benefices  or  fiefs  were  originally  for  life  or  hereditary 440 

The  practice  of  subinfeudation 441 

Independence  of  the  powerful  crown  vassals ;  consequences  to  the  peace 

and  good  order  of  the  nations 442 

Gradual  conversion  of  allodial  into  feudal  land 443 

Nature  of  the  feudal- tie  between  lord  and  vassal 444 

Method  of  conferring  a  fief :  homage 445 

Oath  of  fealty 446 

Conveyance  and  investiture 447 

Essential  characteristics  of  a  feud  in  its  purity : 

1.  The  divided  ownership 448 

2.  It  related  only  to  lands 449 

3.  The  peculiar  relation  between  lord  and  vassal  or  tenant,  and  the 

rights  and  duties  of  each 450 

This  relation  gave  the  lord  the  right  of  administering  justice 451 

Neither  could  withdraw  from  the  relation  without  consent  of  the  other. . . .  452 

Some  other  characteristics  of  the  feud  in  its  purity 453 

Deviations  from  these  strict  rules  and  growth  of  improper  feuds 454 

Incidents  of  pure  feiids. 

1.  Escheats 455 

2.  Ai&s 456 

8.  Reliefs 457 

C 


XXXll  CONTENTS. 

SECTION 

4.  Primer  Seizin 458 

6.  Fines  upon  Alienation 459 

6.  "Wardship 460 

7.  Marriages 461 

Onerous  nature  of  these  incidents  :  power  of  the  lords 462 

Gradual  change  of  the  military  service  of  vassals  into  uncertain  payments 

of  money  called  escuages 463 

Origin  and  meaning  of  "  Tenures  "  and  "  Tenants  " 464 

Distinction  of  tenures  into  "free"  and  "base" — those  whose  services  were 

uncertain,  and  those  whose  services  were  certain 465 

The  union  of  these  classes  formed  the  various  kinds  of  tenures  known  to 

the  English  law,  viz : 

1.  The  pure  Military  Tenure 466 

2.  "    Free  Soccage 467,468 

3.  "    Tenure  by  Villanage 469 

Picture  of  society  at  the  height  of  feudalism 470 

Description  of  villains :  their  legal  status 471 

Lands  held  by  villains 472 

Change  of  tenure  by  villanage  into  "  copyhold  tenure  " 473 

General  influences  of  feudalism  upon  the  laws  and  institutions  of  England,  474 
It  produced  a  distinction  between  lands  and  movables,  and  a  preference  of 

the  former  over  the  latter 475 

This  preference  and  distinction  is  shown — 

1st.  In  their  methods  of  ownership 476 

2d.        "  "  sale  and  alienation 477,478 

Restraints  on  sale  of  lands  invented  by  the  lords :  entails 479 

Restraints  on  forced  sales  of  lands  at  instance  of  creditoi-s 480 

Traces  of  these  restraints  in  American  law 481 

Sd.  In  the  successions  to  and  inheritances  of  them  ;  comparison  between 

feudal  and  Roman  inheritances 482 

Succession  to  movables  governed  by  the  rules  of  Roman  law 483 

Feudal  rules  of  inheritance  adopted  by  English  law 484,  485 

Influence  of  these  rules  on  the  American  law 486 

Effect  of  the  feudal  system  on  civilization  in  Europe 487 

"     on  the  lower  orders  of  society 488 

"         "       higher     "  "       489 

"     on  liberty  and  legislation 490,  491 

Recapitulation 492 

Causes  of  the  decline  of  the  Feudal  System 493,  494 

CHAPTER  III. 

THE      ROMAN      LAW. 

The  Roman  law  is  the  best  example  of  a  complete  legal  growth 496 

Object  of  this  chapter  and  divisions  of  the  subject 496 


CONTENTS.  XXXlll 

The  Aristocratic  Period. 

SEOTIOH 

Sketch  of  the  primitive  social  and  political  organization  of  the  Komana. . . .  497 

General  character  of  the  law  at  this  primitive  time 498,  499 

Grand  divisions  of  the  jurisprudence  itself 500 

I.      OF    PERSONS. 

Meaning  of  the  term  status 501 

Classes  of  persons  and  their  status — Slaves  (servi) 502 

Freemen  (ingenui,  libertini) 503 

Citizens  (cives) 503 

Strangers  (peregrini) ...    504 

Persons  acquiring  and  holding  rights  for  themselves  (sui  juris),  and  those 

acquiring  and  holding  rights  for  another  (alieni  juris) 605 

The  Roman  family  and  its  incidents — 

The  man  sui  juris,  or  the  paterfamilias 506,  507 

His  attributes — 1.  The  paternal  power  (potestas) 508,  809 

2.  Marital  power  (manus) 510,  511 

3.  Mancipium 512 

Agnation,  or  family  relationship  (agnatic,  agnati) 513 

Tutors,  or  Curators,  and  Pupils 514 

Comprehensive  description  of  the  Roman  family 515-517 

II.      OF   THINGS   WHICH    MAT   BE    THE    OBJECTS    OF   RIGHTS. 

Arbitrary  nature  of  the  law  respecting  property 518 

1.  Classes  of  things 519 

(1.)  Things  of  a  superior  class  (res  mancipi) 520 

(2.)  "         an  inferior    "     (res  nee  mancipi) 521 

2.  Kinds  of  property  which  could  be  had  in  things — 

(1.)  The  Roman  or  Quiritary  property  (ex  jure  quiritum). . . .  522,  523 

Method  of  acquiring  and  transferring  it 524 

Gradual  disappearance  of  it 525 

(2.)  Natural  property 526 

3.  Succession  to  the  estate  of  a  deceased  person — 

(1.)  By  will 527,  528 

(2.)  In  case  of  intestacy 529 

III.      OF    OBLIGATIONS. 

General  nature  of  obligations 530 

Definition  and  general  classes  of  obligations 531 

1.  Obligations  arising  from  contract  (ex  contractu) 532 

(1.)  Contracts  based  upon  the  prior  delivery  of  something 533 

(2.)         "  perfected  by  words  :  stipulations 684 

2.  Obligations  arising  from  faults  (ex  maleficio) 636 

Conclusion  of  the  sketch  of  the  law  in  its  primitive  state 536 


XXxiv  CONTENTS. 

Tlie  Philosophic  and  Ghristiam,  Period. 

BKOnOM 

Design  of  this  portion  of  the  chapter 537 

FIEST.-OF  PEESONB. 

1.  Of  Slaves  and  Freemen 688 

2.  The  Domestic  Relations : 

Husband  and  Wife 539,  640 

Parent  and  Child 541 

Tutor  and  Pupil 542,  643 

SECOND.— OF  THINGS. 

I.      OF    DIFFERENT    KINDS    OF   THINGS. 

Things  not  subject  to  private  property 544 

Corporeal  and  incorporeal  things 545 

Servitudes 546 

Usufruct,  Use,  and  Habitation 647 

II.     METHODS   OF   ACQUIRING    PROPERTY    IN    INDIVIDUAL    THINGS. 

1.  By  Occupancy 548 

2.  "   Prescription 549 

3.  "   Donation 550 

4.  "   Sale 651 

Property  acquired  through  another :  peculium  of  slaves  and  children  under 

power 552 

III.     METHODS  OF  ACQUIRING  PROPERTY   IN  THE  ENTIRE  ESTATE   OR  SUCCESSION 
OF    ANOTHER. 

1.  Of  Last  Wills  and  Testaments  : 

The  forms  of  a  will 553 

The  substance  of  a  will. 554-558 

Comparison  between  these  rules  and  those  of  our  law 659 

How  wills  were  broken  or  made  ineffectual 560 

Classes  of  heirs,  and  their  respective  rights  and  duties 561 

Legacies 562 

Fidei  commissa,  or  trusts 568 

Codicils 564 

2.  Of  succession  to  the  estate  of  an  intestate : 

Who  were  intestate 666 

The  first  class  of  persons  who  succeeded  to  the  estate  were  the  descend- 
ants of  intestate 666 

Emancipated  children  admitted  to  the  succession  by  an  innovation  of 

the  prffitor 667 

Descendants  in  the  female  line  also  admitted  by  imi)erial  constitutions.  668 


CONTENTS.  XXXV 

BEOnOR 

Who  succeeded  in  the  absence  of  direct  descendants ;  the  nearest  of  the 

agnats,  or  collateral  relations  by  the  intestate's  father 569 

Id  default  of  these,  the  nearest  of  the  cognats,  or  collateral  relatives 

through  the  intestate's  mother,  succeeded 510 

Rules  determining  the  degrees  of  consanguinity,  and  comparison  of 

these  with  the  Canon  law  and  our  own  law 571,  572 

8.  Succession  to  an  entire  estate  by  adrogation 578 

4.        "  "  "  by  sale  of  a  debtor's  property 574 

THIRD.— OF  OBLIGATIONS. 
General  description  and  classes  of  obligations 576 

I.     OBLIGATIONS    ARISING    FROM    CONTRACTS. 

Divisions 676 

1.  Real  Contracts : 

Mutuum,  or  Loan 677 

Commodatum 578 

Depositum 579 

Pignus,  or  Pledge 680 

2.  Contracts  arising  from  Words : 

How  made  :  stipulations 681 

How  and  when  to  be  performed 582 

For  what  purposes  made 683 

When  void 684 

Fide-jussores,   or  sureties 585 

3.  Contracts  in  Writing 586 

4.  Contracts  founded  on  mere  Consent : 

Their  general  character 587 

Purchase  and  Sale 588 

Letting  and  Hiring 589-691 

Partnership 592 

Mandate 693 

II.      OBLIGATIONS    ARISING    QUASI    EX    CONTRACTU. 

Illustrations  and  examples  of  these 694 

III.      OF    THE    METHODS    BY   WHICH    THESE    OBLIGATIONS    MIGHT   BE    SATISFIED 
AND    DISCHARGED. 

1.  By  Payment ;   2.  by  Acceptilation  ;    3.  by  Novation  ;   4.  by  Consent. . .  595 

IV.     OBLIGATIONS    ARISING    EX    MALEFICIO. 

Furtum,  ,or  Theft 596 

Damnum,  or  Damage 597 

Injuria,  or  Injury 698 


XXXvi  CONTENTS. 

« 

T.     OBLIGATIONS   ARISING   QUASI    EX    MALEFICIO. 

SBOTIon 

Liabilitiea  for  wrongs  ex  maleficio 699 

The  Boman  Law  during  the  Middle  Ages,  and  its  connection  with 
Modem  Jurisprudence. 

State  of  the  law  in  the  Western  Empire  at  the  barbarian  conquest 600 

The  Germans  did  not  destroy  this  law,  but  left  it  existing  as  a  "  personal " 
law ;  meaning  of  "  personal "  law ;  rules  in  regard  to  the  application 

of  the  "  personal "  laws, 601 

This  condition  of  the  law  changed  when  the  nations  became  united ;  how  the 

change  took  place  in  France 602 

No  personal  laws  among  the  Saxons  in  Britain 603 

Some  of  the  public  institutions  of  the  Roman  provinces  were  also  left,  espe- 
cially municipal  organizations :  influence  of  these 604 

In  the  distribution  of  lands  a  portion  was  left  to  the  old  Roman  proprietors,  605 
The  causes  which  kept  the  Roman  law  alive  were  historical :  development 

of  these  causes  in  subsequent  ages 606 

Revival  of  the  study  of  the  Roman  law  as  a  science,  and  its  efifects 607 

A  Roman  triumph  the  symbol  of  the  Roman  national  power 608 

The  praetor  on  his  judgment  seat  the  symbol  of  Roman  intellectual  and  or- 
ganizing power :  conclusion 609 

CHAPTER  IV. 

THE   MARITIME   CODES   OF   THE    MIDDLE   AGES. 

General  resemblance  of  the  mercantile  law  of  different  countries,  and  rea- 
sons for  it 610 

Mercantile  law  in  England  grew  up  from  customs  of  merchants  adopted  by 

Courts,  and  enlarged 611 

Branches  of  modem  mercantile  law 612 

Sources  of  a  portion  of  this  are  to  be  found  in  the  Roman  law,  but  of  the 

maritime  law  in  the  legislation  of  Middle  Ages 618 

Sketch  of  commercial  cities  of  Middle  Ages 614 

How  their  customs  grew  to  be  laws 616 

The  maritime  laws  of  Amalphi 616 

The  Consulate  del  Mare 617 

The  laws  of  Oleron 618 

"      "       Wisbuy 619 

"       "        the  Hanseatic  Towns 620 

These  several  collections  form  the  basis  of  modem  maritime  law :  how  they 
were  incorporated  into  English  jurisprudence 621 


CONTENTS.  XXXVU 

PART   THIRD. 

OUTLINES     OF     OUR     MUNICIPAL    LAW. 


« 


CHAPTER  I. 

PERSONS   AND    PERSONAL    RIGHTS. 

SBOTIOM 

What  kind  of  personal  rights  the  law  regards 622,  623 

General  divisions  of  the  subject 624 

SECTION   FIRST. 
Of  Persons  generally,  and  their  Rights  and  Duties.    , 
Three  classes  of  such  persons 625 

L_OF  THE   ABSOLUTE  RIGHTS  "WHICH  THE   LAW  EE00GNIZE8  AB 
BELONGING  TO  ALL  PERSONS  OF  CLASS  L 

Summary  of  these  rights 626 

Their  origin  in  English  history :  Magna  Charta 627,  628 

Petition  of  Right 629 

Habeas  Corpus  Act 630 

The  Bill  of  Rights 631 

These  rights  inherited  by  our  ancestors 632 

Provisions  of  the  Federal  Constitution  guarding  them 633 

1.    Tlie  Right  of  Personal  Security. 

(1.)  Security  of  Life :  against  the  Government 634,  635 

"       private  violence 636 

remedy  for  its  violation 637 

(2.)  Security  of  Body  and  Limb  :  against  the  Government 638 

"       private  violence 639 

remedies  for  its  violation 640 

(3.)  Security  of  Character :  slander  explained,  and  how  punished 641,  642 

libel  "  "  "       643-645 

2.   The  Right  of  Personal  Liberty. 

Eptimation  in  which  this  right  is  held 646 

(1.)  Nature  of  legal  liberty  and  its  guarantees 64*7,  648 

(2.)  Limitations  on  the  right  of  personal  liberty ; 

Those  from  the  necessities  of  the  public 649 

"     private  in  their  nature :  arrest  and  imprisonment  for  debt,  650,  651 
"    arising  from  the  domestic  relations 652 


XXXViil  CONTENTS, 

9ECTI0K 

(3.)  How  the  right  of  personal  liberty  may  be  enforced  : 

Remedies  by  actions  for  damages 653 

The  Writ  of  Habeas  Corpus :  description  of  the  writ 654 

Origin  of  it 655 

How  used  in  the  United  States :  how  in  the  Federal  Courts 656 

How  in  the  State  Courts 657 

Examples  of  its  use  in  the  State  Courts 658 

(4.)  Of  the  Status  of  Slavery  : 

Slavery  is  contrary  to  natural  law 659 

Definition  and  description  of  slavery 660 

Serfdom  in  England 661 

"        was  extinguished  in  England  by  the  action  of  the  Courts 
in  developing  the  legal  principle  that  presumptions  were  always 

made  in  favor  of  freedom 662 

Rules  in  suits  between  lord  and  serf  brought  to  establish  the  fact 

of  slavery  or  freedom 663-666 

Slavery  in  the  United  States  a  local  institution 667 

General  principles  in  regard  to  it 668 

3.    The  Right  to  acquire  and  enjoy  Private  Property. 

How  guaranteed 669 

Remedies  for  an  invasion  of  the  right 670 

How  the  right  may  be  lawfully  invaded  by  a  private  person 671 

The  right  is  subordinate  to  the  public  needs  as  enforced  by  taxation  and  the 

right  of  eminent  domain ;  foundation  of  these  public  powers 672 

Power  of  the  Government  in  taxation 673 

"         "  "  in  exercising  the  right  of  eminent  domain 674 

This  right  sometimes  exercised  directly  by  the  Government,  and  sometimes 

delegated 676 

4.    The  Right  of  Religious  Belief  and   Worship. 
Principles  of  this  right  as  recognized  in  America,  and  the  limitations  upon  it,  676 

Limitations  on  these  Personal  Rights  of  Life,  Liberty,  and  Property. 

Importance  of  this  subject 677 

Object  of  this  section 678 

Recapitulation  of  rights  guaranteed  by  the  Constitution 679 

In  construing  these  provisions,  their  ordinary  and  plain  meaning  is  to  be 

followed 680 

In  determining  this  meaning,  and  the  powers  of  the  Government  under 
them,  the  analogy  of  the  English  Constitution  cannot  be  strictly  fol- 
lowed  681-683 


CONTENTS.  XXXIX 

SEOTIOS 

£.  Tke  effect  of  these  constitutional  guarantees  •  their  full  significance  only 

to  be  obtained  by  a  careful  analysis  of  English  constitutional  history,  684 

1.  They  are  equally  binding  on  all  departments  of  Government 685 

The  Habeas  Corpus  clause,  in  whatever  way  construed,  peremp- 
torily recognizes  a  power  existing  in  some  department  of  Gov- 
ernment to  suspend  the  privilege  of  uie  writ 686 

2.  What  power  does  a  suspension  of  this  writ  confer  on  the  Gov- 

ernment ? 687 

(1.)  What  is  meant  by  suspending  the  privilege  of  the  writ  ?. . . ,  688 
(2.)  Suspending  the  privilege  of  this  writ  leaves  all  the  rest  of  the 

constitutional  guarantees  intact,  and  in  full  force  and  effect . .   689 
(3.)  The  Government  has  no  civil  power  to  deprive  the  people  of  all 
remedies  ;  and  while  the  single  remedy  of  the  Habeas  Corpus 

is  taken  away,  the  others  are  left 690 

(4.)  Suspension  of  the  privilege  of  this  writ  only  confers  on  the 
Government  the  passive  power  of  resistance,  but  no  active 
power  to  arrest  or  imprison 691 

3.  There  is  then  no  civil  power  in  the  Government  to  proceed  in  any 

other  way  than  by  "  due  process  of  law  " 692 

n.  The  power  of  disregarding  these  constitutional  guarantees  of  life,  liberty, 
and  property,  does  however  exist,  and  may  be  rightfully  exercised  un- 
der certain  conditions 693 

1.  Whatever  power  exists  must  be  exercised  in  accordance  with  the 

Constitution 694 

The  Constitution  confers  powers  on  the  Government  in  time  of 

war,  which  do  not  exist  in  time  of  peace 695 

2.  One  of  the  inseparable  adjuncts  of  war  is  the  right  to  resort  to 

"martial  law" , 696 

(1.)  "Military  law"  and  "martial  law"  diflPerent:  meaning  of 

"  military  law  " = 69*7 

Definition  and  description  of  "  martial  law  " 698 

Martial  law  decided  by  the  Supreme  Court  of  the  United 

States  to  be  admissible  in  this  country 699 

(2.)  Effect  of  martial  law  in  suspending  civil  rights TOO 

(3.).  These  effects  are  still  in  accordance  with  the  Constitution. . .  VOl 

HI.    When  the  power  in  question  may  exist,  viz.,  in  time  of  internal  war,  '702 

rV,  By  whom  may  it  be  exercised  ? 703 

1.  Not  by  the  Judiciary 704 

2.  Nor  by  Congress 705 

Ppwers  of  Congress  in  time  of  war  stated 706,  707 

8.  It  can  only  be  exercised  by  the  President  as  commander-in-chief. . .   708 
Powers  of  the  President  in  time  of  war  stated 709,  710 


xl  CONTENTS. 

SKOTIOK 

V.    When  may  the  power  he  exercised  ? 711 

It  may  be  exercised  through  means  of  the  martial  law^  wherever  mili- 
tary movements  are  in  operation,  and  wherever  their  influence 

legitimately  extends 712-714 

The  martial  law  is  not  arbitrary 715 

Conclusion 716 

% 

II.— CITIZENS  OF  THE  UNITED  STATES,  OR  OF  A  PAETICULAR  STATE, 
AND  THEIE  PECULIAE  EIGHTS. 

The  rights  belonging  to  citizens  as  such  may  be  summed  up  as  being  Po- 
litical Protection 717 

Distinction  of  natives  and  aliens 718 

As  a  general  rule  natives  are  citizens :  exceptions 719 

Quaere  :  whether  free  negroes  are  citizens  of  the  United  States 720 

Congress  possesses  and  has  exercised  the  power  of  admitting  foreigners  to 

citizenship  by  naturalization 721 

Who  are  included  among  citizens  of  the  United  States 722 

The  laws  allow  only  white  foreigners  to  be  naturalized  ;  whom  this  includes ; 

reasons  why  the  prohibition  should  be  extended  beyond  negroes 723 

State  powers  as  to  citizenship  of  the  several  States 724 

Peculiar  rights  of  citizenship,  as  to  holding  property :  restriction  of  the 

right  of  aliens  to  hold  lands 72.N 

Right  to  protection  at  home  and  abroad :  examples 72e 

Certain  particular  rights 727 

III.— THOSE  PERSONS  TO  WHOM  THE  POLITICAL  POWER  OF  THE  UNITED 
STATES,  OR  OF  A  PARTICULAR  STATE,  IS  COMMITTED. 

General  description  of  this  power 728 

The  States  determine  who  are  to  be  electors  of  representatives  in  the  Fed- 
eral Congress 729 

As  a  general  rule  they  are  the  male  white  citizens  of  the  age  of  twenty-one, 

and  over :  some  exceptions  and  additions 730 

How  the  President  is  elected. 731 

Other  United  States  officers,  and  the  State  officers,  how  chosen 732 

SECTION    SECOND. 

Some  particular  classes  of  Persons^  and  their  Peculiar  Riyhts  and  Duties, 

Classes  of  persons  embraced  in  this  section 7S8 

I.     HUSBAND  AND  WIFE. 

1.    TTie  Marriage   Relation. 

Universality  of  marriage V34 

Origin  of  the  institution  with  us 735 


CONTENTS.  Xli 

BECTIOS 

(1.)  Definition  of  marriage 736 

(2.)  How  entered  into 737 

Requisite  parties 738 

Consent  of  parties 739 

Forms  necessary  in  certain  countries 740 

Free  consent  the  gist  of  marriage 741 

(3.)  Character  of  the  marriage  relation 742 

(4.)  How  terminated :  void  and  voidable  marriages 743 

Divorce 744-746 

2.  RightSy  Powers,  and  Duties  of  Husband  and  Wife. 

The  commoii  law  regarded  the  parties  as  legally  one 747 

Personal  rights  of  the  husband  by  the  cornmon  law 748 

"         duties     "  "  "  "  749 

"        rights  and  duties  of  wife  by  the       "  750 

Cannot  be  witnesses  for  each  other     "  "  751 

Husband's  rights  to  property  of  wife  "  "  752 

Wife's  "  "      of  husband  by  the  common  law 753 

They  cannot  contract  with  each  other  "  "  754 

These  common-law  rules  are  still  existing,  except  where  altered  by  statute,  755 

Modifications  made  in  them  by  Courts  of  Equity 756 

Changes  made  by  the  legislation  of  American  States :  example  of  New  York,  757 

Effect  of  this  legislation  on  the  marriage  relation 758 

3.    The  French  Law  of  Marriage. 

Benefits  of  a  comparison  of  our  own  with  the  French  system 759 

Kinds  of  marriage 760 

Community  of  goods  described « 761-763 

Dotal  marriage 764 

Personal  rights  of  the  parties 765 

Advantages  of  the  community  system 766 

II.     PARENT    AND    CHILD. 

Character  of  the  parental  obligations  which  the  Municipal  Law  enforces. . .  767 

(1.)  The  Parent :  his  powers  and  duties 768-770 

(2.)  The  Child  :  his  duties  and  rights 771 

Infants  ■  their  disabilities  and  powers 772 

III.  GUARDIAN    AND    WARD. 

Object  of  guardianship  :  common-law  rules 773 

Method  of  appointment  of  guardians 774 

Their  powers  and  duties 776 

/ 

IV.  MASTER   AND    SERVANT. 

Character  of  the  relation  rather  one  of  contract  than  of  status 77  ft 


Xlii  CONTENTS. 

CHAPTER  n. 

OF      PROPERTY 
SECTION    I 

OF  THINGS  WHICH  MAT   BE  THE  OBJECTS  OF   PROPERTY. 

8E0TIOM 

Definition  of  property 117 

Divisions  of  tliis  chapter 778 

What  things  may  be  the  objects  of  property 779 

Divisions  of  things  into  real  and  personal 780 

(1.)  Things  personal 781 

(2.)       "       real:  lands 782 

Incorporeal  things  real 783 

(3.)  Things  sometimes  personal  and  sometimes  real 784 

SECTION    II. 

METHODS  OF  ACQUIRING  PROPERTY   IN  THINGS. 

General  divisions  of  this  section 785 

I.  WHEN  A  PERSON  ACQUIRES  PROPERTY  ENTIRELY  BY  HIS  OWN  ACTS,  WITHOUT  CON- 
NECTION WITH,  OR  TRANSFER  FROM,  ANY  OTHER  IMMEDIATE  OWNER. 

Character  of  the  methods  in  this  division 786 

1.  Occupancy 787 

2.  Prescription 788,  789 

Theory  of  this  method 790 

3.  Natural  increase 791 

4.  One's  own  labor 792 

Products  of  mental  labor 793 

n.    WHEN    PROPERTY    IS    ACQUIRED    ON   THE    OCCASION    OF   THE    DEATH    OF 
THE    FORMER    OWNER. 

Methods  included  in  this  division 794 

1.    In  the  case  of  Intestacy. 

DJBtinction  between  lands  and  movables  in  respect  to  succession 796 

(1.)  Of  acquiring  property  in  movables :  administrators 796 

How  administrators  fippointed 717 

Their  powers '^^^ 

"      duties :  payment  of  debts 799 

Distribution  among  the  next  of  kin  :  who  are  next  of  kin 800 


CONTENTS.  Xliii 

BEOnON 

(2.)  Of  acquiring  property  in  things  real :  descents  and  inheritances. .  801 

Origin  of  the  rules  of  descent  in  the  common  law 802-804 

Summary  of  the  English  rules  of  descent 805 

Changes  made  in  these  principles  by  American  law 806 

Summary  of  American  rules  of  descent 807 

PoUcy  of  our  law  of  descent 808 

Lands  chargeable  with  debts  of  deceased 809 

Summary  of  changes  in  this  branch  of  the  law  made  in  the  U.  States,  810 

2.    By  Last  Will  and  Testament. 

Definition  and  origin  of  wills 811 

What  things  may  be  disposed  of  by  will,  and  in  what  manner 812 

Who  may  make  wills 813 

How  wills  are  executed 814 

How  altered  or  revoked , 815 

How  property  given  by  will  vests  in  devisees  and  legatees '.  816 

Contents  of  a  will 817 

III.    WHEN   PROPERTY   IS  ACQUIRED  FROM   A  FORMER   LIVING  OWNER. 

General  classes  and  methods  embraced  in  this  division 818 

1.  When  the  transfer  is  made  by  the  act  and  with  the  consent  of  the 

former  owner. 

General  character  of  these  methods 819 

(1.)  Donations  of  things  personal 820 

(2.)  Transfer  of  things  personal  by  contract 821 ,  822 

(3.)  Conveyance  of  lands  by  deed :  origin  of  deeds 823 

What  dispositions  of  property  may  be  made  by  deed 824 

Essentials  of  a  deed  in  respect  to  form 825 

Acknowledgment  and  recording  of  deeds  in  the  United  States. . .  826 

General  contents  of  deeds 827 

Special  covenants  often  contained  in  deeds 828 

(4.)  Marriage 829 

2.  Wlien  the  transfer  is  made  as  a  consequence  of  the  former  owner's 

acts,  but  without  his  consent. 

General  character  of  these  methods 830 

(1.)  Forfeiture. 831 

(2.)  Judgment  and  execution 832 

"  "         against  chattels 833 

Lien  of  judgment  upon  lands 834 

Sale  of  lands  on  execution 835 

(3.)/  Bankruptcy  and  Insolvency :  English  system 836 

American  bankrupt  and  insolvent  laws 837 


xliv  CONTEISTS. 


SECTION    III, 

OF  THE  KINDS  AND   DEGREES   OF   PEOPERTT   WHICH   MAT  BE   HAD   IN  THINGS. 

SECTION 

General  division  of  property  into  absolute  and  qualified 838 

I.     IN   THINGS    PERSONAL. 

Absolute  property 839 

Qualified 840 

Number  and  connection  of  owners 841 

II.     IN   THINGS   REAL. 

General  principles  relating  to  property  in  things  real 842 

Definition  of  estates  :  their  dinsions 843 

1.  Absolute  Estates :  fee  simple 844 

Conditional  fees :  entails 845 

2.  Qualified  Estates 846 

(1.)  Estates  for  life 847 

"      by  courtesy 848 

Dower :  when  it  exists,  and  its  nature 849 

"          how  barred 850 

"         how  set  apart  to  the  widow 851 

General  rights  of  owners  of  life  estates 852 

(2.)  Estates  for  years 853 

All  of  these  estates  may  coexist 854 

Those  qualified  estates  which  depend  upon  the  quality  of  the  interest 855 

(3.)  Mortgages 856 

Ancient  law  as  to  mortgages 857 

Modem  law  ;  rights  of  mortgagor 858 

Rights  of  mortgagee ;  foreclosure ;  rights  of  subsequent  in- 
cumbrancers   859 

Equitable  nature  of  the  rules  respecting  mortgages 860 

(4.)  Uses  and  Trusts :  origin  and  ancient  nature  of  uses :  statute 

of  uses 861 

Uses  under  the  statute 862 

Trusts  invented  by  Courts  of  Equity :  their  nature 863 

Extensive  application  of  the  doctrine  of  trusts  by  Courts  of 

Equity 864 

Active  and  passive  trusts 865 

8.  When  the  enjoyment  of  Estates  may  commence:  estates  in  possession,  866 

Estates  in  expectancy :  their  general  nature 867 

Remainders  defined  and  illustrated 868 

Efil'ct  of  lemaiuders  to  suspend  the  power  of  alienating  lands 869 

Reversions  defined  and  illustrated 870 


CONTENTS.  Xlv 

8KCTI0M 

4.  Of  the  number  and  connection  of  owners  :  ownership  in  severalty : 

joint  ownership 871 

Ownership  in  common 872 

CHAPTER  III. 

OF      CONTKACTS 

General  description  of  contracts 873 

Definition  and  classes  of       "      874 

Essential  elements  of  "      875 

Tlie  parties 876 

Joint  and  several  liability 877 

Tlie  assent 878 

The  consideration 879 

Classes  of  considerations 880 

Adequacy  of        "  881 

Examples  "         "  882 

.The  time    "         "  883 

77ie  subject  matter ,884 

The  contract  of  sale  :  definition  and  general  features 885 

Delivery  of  the  things  sold 886 

Warranty  of  title  :  warranty  of  quality 887 

Good  faith  m  the  seller 888 

The  contract  of  bailment :  definition  and  general  features 889 

Degrees  of  care  and  negligence 890 

Classes  and  species  of  bailments ;  deposits;  mandates;  gratuitous  loans. . .   891 

Pledge 892 

Locatio  or  hiring  :  letting  to  hire 893 

Hiring  that  work  and  services  may  be  done 894 

Carrying  of  goods  :   common  carriers 895 

The  contract  of  agency :  definition 896 

General  principles 897 

Classes  of  agents :  how  appointed :  their  powers 898 

Agency  how  terminated 899 

The   contract   of  partnership :   definition :    how  created   as  between   the 

partners 900 

How  created  as  toward  third  persons 901 

General  powers  and  liabilities  of  partners 902 

Payment  of  partnership  debts 903 

Partnership  how  dissolved 904 

Bills  of  Exchange  and  Promissory  Notes  :  definition,  origin,  and  use ....   905 

Their  character  of  negotiability  :  how  negotiated 906 

The  rightg  of  the  holder 907 

Presentment  of  bUls  for  acceptance 908 


xlvi  CONTENTS. 

SEOTION 

Liabilities  of  the  parties  to  the  holder,  and  among  themselves 909 

Steps  for  fixing  liability  of  drawers  and  indorsers 910 

,  CHAPTER  IV. 

LEGAL   MAXIMS. 

Origin,  general  character,  and  use  of  legal  maxims 911 

Maxims  of  public  policy  and  of  legislation 912 

"       of  judicial  logic 913 

"       containing  universal  principles  of  justice 914 

"      relating  to  property 915 

**            "      to  the  interpretation  of  written  instruments 916 

«              "       to  contracts 917 


INTRODUCTORY   CHAPTER. 


§  1.  A  KNOWLEDGE  of  the  general  principles,  the  bold 
outlines  and  grand  features  of  our  Municipal  Law,  should 
be  considered  an  essential  part  of  any  liberal  education  and 
culture.  The  science  of  Law  is  multiform.  It  reaches  out, 
seizes,  and  draws  in  its  methods  and  materials  from  many 
departments  ;  here  it  sends  down  a  root  into  the  undefined 
and  almost  hidden  traditions  of  the  past,  and  now  supports 
itself  upon  the  premises  and  conclusions  of  the  jDurest  and 
simplest  morals  ;  its  deductions  are  sometimes  cast  in  the 
mould  of  the  severest  logic,  and  again  assume  the  form  of 
historical  narrative.  It  extends  from  the  birth  of  a  nation 
or  race,  over  generations  and  centuries,  to  the  busy  life  of 
the  present  day.  It  is,  in  short,  the  summing  up  of  almost 
all  knowledge  not  strictly  physical.  It  demands  a  famil- 
iarity with  history,  with  ethics,  and  with  logic.  Whatever 
we  have  learned  elsewhere,  will  contribute  its  aid  in  our 
study  of  this  comprehensive  science. 

§  2.  A  study  calling  into  active  play  and  exercise  so 
many  faculties,  and  giving  point  and  practical  application 
to  so  many  acquirements,  should  not  be  neglected  by  those 
who  seek  to  attain  that  rounded  completeness  of  character 
which  is  the  result  of  a  liberal  education.  Should  we  ad- 
mire thp  literature  of  the  ancient  Romans,  and  pass  by 
those  institutions  which  grew  up  with  the  growth  of  the 
Roman  people,  and  gave  them  much  of  their  character,  and 
1 


Z  ENTEODUCTION. 

have  been  a  legacy  to  the  world,  by  the  side  of  which  their 
literature  sinks  into  absolute  insignificance  ?  Should  we 
gaze  with  wonder  upon  the  shifting  scenes  of  the  Middle 
Ages,  the  turmoil  and  confusion,  the  haughty  independence 
and  abject  servitude,  the  pomp  and  circumstance  of  chiv- 
alry, and  the  poverty  and  degradation  of  the  laborer,  and 
fail  to  see  the  solid  and  severe  framework  which  supported 
all  these  outward  appearances  ?  Should  we  study  the  his- 
tory of  England,  tlie  rise  and  fall  of  dynasties,  the  terrible 
conflicts  of  opposing  principles,  the  death-struggles  between 
prerogative  and  liberty,  and  neglect  to  discover  the  real 
current  of  the  nation's  life  which  flowed  on,  bearing  all 
these  forms  upon  its  bosom  ?  Would  we  turn  to  philosophy, 
and  nourish  our  minds  with  the  eternal  principles  of  right, 
and  duty,  and  obligation,  and  refuse  to  learn  how  these 
truths  have  been  applied  in  the  thousand  changing  circum- 
stances which  make  up  the  daily  life  ?  The  law  thus  gath- 
ers up  the  separate  threads  of  knowledge,  of  thought,  and 
experience,  and  weaves  them  into  a  composite  w^eb,  in 
which  all  their  peculiarities  are  blended,  while  the  whole 
fabric  essentially  depends  upon  each  of  its  many  elements. 

§  3.  There  are  some  special  reasons  directly  connected 
with  our  political  condition,  with  the  structure  of  our  State 
and  National  Governments,  and  the  organization  of  society, 
which  even  more  urgently  demand  an  acquaintance  with  the 
ideas,  spirit,  growth,  and  history  of  the  municipal  law  among 
educated  men.  To  the  general  advantages  attending  the 
study  of  the  law  as  a  part  of  a  liberal  education,  our  polit- 
ical system  adds  the  stronger  claims  of  our  obligations  as 
citizens. 

§  4.  1.  The  fact  that  every  citizen  has  a  voice  in  the 
selection  of  legislators  is  a  consideration  of  the  highest  im- 
portance in  favor  of  a  general  difi'usion  of  a  knowledge  of 
the  law.  By  our  several  forms  of  State  governments,  the 
local  legislatures  are  almost  absolutely  supreme,  so  far  as  re- 
gards those  matters  which  are  not  withdi-awn  from  them  by 


nrrKODUCTioN.  8 

the  Federal  Constitution.  They  have  the  power,  not  only  to 
pass  those  political  measures  which  concern  the  general 
welfare,  but  also  to  modify,  alter,  add  to,  or  abolish  our 
whole  system  of  municipal  jurisprudence.  When  we  reflect 
that  not  a  session  of  a  legislature  passes  without  the  most 
radical  and  sweeping  changes  being  proposed  and  carried 
into  effect,  changes  inevitably  followed  by  results  unseen 
and  unexpected  by  their  projectors ;  when  we  remember 
that  it  is  within  the  power,  and  often  within  the  will,  of  legis- 
lators, to  strike  away  at  one  blow  our  whole  legal  system, 
and  substitute  some  other  in  its  stead,  we  can  but  feel  that 
a  solemn  responsibility  rests  upon  each  individual  elector 
in  the  choice  of  his  representative ;  a  responsibility  which 
should  be  enlightened  by  some  comprehensive  and  scientific 
knowledge  of  the  law  as  a  whole.  Here,  in  the  State  of 
New  York,  we  are  being  rapidly  brought  face  to  face  with 
the  great  question,  Shall  we  abolish  our  present  system  of 
jurisprudence,  as  an  elastic,  accommodating,  developing 
free  life,  built  up  upon  the  accumulating  decisions  of 
courts,  the  spirit  and  methods  of  which  we  have  inherited 
from  our  English  ancestors,  and  supply  its  place  with  the 
fixed,  unyielding,  though  distinct  and  sharply-defined  form 
of  a  general  code  ?  I  say,  this  question  must,  ere  long,  be 
met  and  answered  in  this  State  of  New  York,  and  doubtless 
in  other  commonwealths.  Is  it  not  of  absolute  necessity 
that  there  should  be  some  element  in  the  body  of  electors, 
which  can  guide  public  opinion  and  influence  legislative 
will  to  the  correct  decision  of  this  most  important  issue  ? 
It  is  generally  conceded  that  the  delegates  to  the  National 
Congress  should  be  chosen  with  some  care,  with  some  refer- 
ence to  their  fitness  for  the  stafion  they  occupy ;  but  every 
good  and  wise  citizen  should  remember  that  his  worthy 
neighbor  who  is  sent  to  the  State  Legislature,  carries  with 
him  a  power  over  the  private  interests  of  the  people,  im- 
measurably greater  than  that  possessed  by  the  national 
congressman.     The  latter  is  hedged  round  on  every  side  by 


INTRODUCTION. 


constitutional  restrictions,  and  can  legitimately  do  nothing 
which  is  not  pointed  out  by  the  organic  law,  while  the 
other  has  full  range,  "  ample  scope  and  verge,"  wherein  to 
exercise  his  public  functions ;  lie  can  do  anything  not  for- 
bidden by  the  Federal  or  local  Constitution.  The  results 
of  his  innovating  labors,  whether  good  or  bad,  may  make 
themselves  felt  in  every  man's  entire  relations,  as  a  prop- 
erty holder,  a  husband,  a  father,  or  a  neighbor.  As  all 
political  power  is,  with  us,  so  far  forth  derived  from  the 
people,  that  it  there  first  finds  its  outward  expression,  there 
exists  no  country  in  which  the  necessity  is  so  imperious,  not 
only  for  the  difi'iision  of  intelligence  among  the  citizens,  but 
for  the  spread  of  the  special  knowledge  of  the  municipal 
law.  Sir  William  Blackstone  urges  the  same  consideration 
upon  the  educated  youth  of  England,  but.  with  us  the  force 
of  the  argument  is  increased  in  a  tenfold  degree.  We  have 
no  conservative  order  of  hereditary  legislators ;  change  and 
fluctuation  is  the  rule,  not  the  exception  ;  the  people  are 
called  upon  at  short  intervals  to  delegate  their  authority  to 
representatives ;  the  measures  and  policy  of  one  year  are 
forgotten  and  pass  away  the  next ;  special  legislation  di- 
rected to  particular  evils,  without  any  regard  to  the  effect 
upon  related  subjects,  is  common,  nay  universal.  We  need 
a  stable,  self-contained,  though  moving  and  progressing  bal- 
ance, with  power  sufficient  to  guide  and  steady  the  govern- 
mental and  social  movements,  and  yet  not  so  sluggish  and 
inert  as  to  obstruct  and  prevent  them.  That  power  is  only 
to  be  found  in  a  numerous  class  of  thoroughly  educated 
citizens. 

§  5.  2.  But  the  argument  is  greatly  strengthened  when 
we  reflect  that  every  man  not  only  has,  placed  in  his  keep- 
ing, the  power  and  duty  of  joining  in  the  choice  of  others 
to  represent  the  public  will  and  act  for  the  public  good,  but 
he  may  himself  be  called  upon  to  exercise  the  functions  of 
a  legislator.  The  responsibility  in  the  election  of  represent- 
atives may  be  deemed  so  divided  and  reduced  by  being 


INTKODUCTION.  0 

shared  with  many  thousand  fellow  voters,  as  to  lia^e  but 
little  weight,  but  upon  the  individual  chosen  to  alter  or 
conserve  the  laws,  it  must  rest  with  overwhelming  force. 
Legislators  will,  however,  reflect  the  general  opinion  and 
culture  of  their  constituents. 

§  6.  3.  A  third  element  in  our  social  and  political  or- 
ganization adds  weight  to  the  strength  of  the  argument. 
Kot  only  is  the  power  of  originating  laws  referable  to  the 
general  body  of  citizens  meeting  in  their  electoral  capaci- 
ties, and  through  them  to  the  delegates  composing  the  State 
and  j^ational  Legislatures  ;  not  only  does  the  existence  of 
any  and  all  forms  and  systems  of  jurisprudence  rest  solely 
and  finally  in  the  collective  will  of  the  nation,  but  the  peo- 
ple have  the  other,  and  perhaps  even  more  practically  im- 
portant function  of  interposing  in  the  actual  administration 
of  justice.  Eight  at  the  very  point  where  the  law  descends 
from  its  serene  height  of  abstract  right,  and  touches  the 
individual,  bringing  its  sanctions  to  bear  upon  him,  and 
making  itself  felt  as  a  restraining  or  an  assisting  power, 
there  the  people,  not  the  magistrate,  nor  the  official,  step  in 
and  form  the  channels  and  instruments  by  which  the  theo- 
retical code  becomes  practically  efficient  upon  the  lives, 
liberty,  and  property  of  men.  Under  our  judicial  and 
administrative  machinery,  it  is  not  entirely  the  judge  who 
is  the  organ  of  communication  between  the  majesty  of  the 
supreme  will  and  the  individual  suitor  ;  it  is  even  more  the 
jury  with  whom  the  power  rests  of  rendering  the  jurispru- 
dence effective,  or  of  measui-ably  destroying  its  character 
and  usefulness.  The  method  of  jury  trial  is  certainly  that 
which  demands  the  highest  culture  among  the  citizens  in 
order  to  realize  its  ideal  benefits.  The  objections  which  are 
urged  with  the  strongest  force  against  the  system  are  all 
based  upon  the  fact  that  the  people,  the  twelve  representa- 
tives of  the  collective  body,  who  sit  as  triers  in  any  partic- 
ular case,  have  not  the  qualifications  essential  to  produce 
the  actual  good  results  of  this  intervention  of  laymen  into 


6  mXEODUCTION. 

judicial  disputes.  We  are  bound  to  tlie  jury  trial  by  all 
the  holiest  traditions  of  our  past  history  ;  we  esteem  it  as 
the  very  bulwark  of  our  liberties  ;  it  can  only  be  given  up 
by  some  great  shock  and  social  revolution  ;  but  to  preserve 
the  institution  in  its  integrity,  to  make  it  a  conserving  and 
not  a  destructive  element,  demands  a  broad  culture,  a  gen- 
eral diffusion  of  knowledge,  an  intimate  acquaintance  with 
the  outlines  of  legal  science,  among  those  educated  classes 
who  should  give  tone  and  character  to  the  thoughts  and 
opinions  of  the  whole  people. 

§  7.  While  thus  strongly  recommending  the  study  of  law 
as  a  part  of  the  regular  curriculum  in  our  colleges,  I  am  by 
no  means  of  the  opinion  that  the  student's  time  should  be 
occupied  with  much  of  detail  and  minutiae.  He  needs  gen- 
eralizations, the  animating  principles,  rather  than  the  spe- 
cial rules  by  which  the  principles  have  been  made  applica- 
ble to  particular  cases.  He  should  be  led  to  catch  the  bold 
outlines,  the  historical  sources  and  epochs,  and  the  ethical 
elements,  all  of  which  in  combination  produce  the  strong 
framework  of  the  science. 

§  8.  Invaluable  as  are  many  general  treatises  of  muni- 
cipal law,  and  especially  the  Commentaries  of  Sir  "William 
Blackstone,  and  those  of  Chancellor  Kent,  they  are  com- 
pletely unfitted  as  introductions  to  the  study  of  jurispru- 
dence as  a  part  of  a  liberal  education.  These  works  are 
admirable  for  professional  students,  but  by  their  very  detail 
and  comprehensiveness,  they  become  confused  and  burden- 
some to  general  students.  There  is  also  a  special  defect  in 
these  treatises,  and  particularly  in  tliat  of  Judge  Blackstone, 
in  that  they  give  no  account  of  the  Roman  law,  other  than 
in  occasional  and  incidental  allusions,  and  are  entirely  defi- 
cient in  what  may  properly  be  called  comparative  law.  It 
may  not  be  of  nmch  practical  importance  to  the  busy  law- 
yer, to  know  how  the  same  living  seeds  of  principles  have 
developed  into  the  jurisprudence  of  England  and  into  that 
of  France  ;  to  investigate  the  various  influences  which  have 


INTKODUCTION.  7 

exerted  their  power  in  these  two  countries  in  diverting  their 
once  common  stream  of  the  municipal  law ;  but  these  are 
the  very  classes  of  questions  which  are  of  the  highest  inter- 
est and  importance  to  the  perfection  of  a  general  culture. 
The  advocate  would  hardly  stop  in  his  labors  in  the  courts, 
to  trace  the  gradual  development  of  the  Roman  jurispru- 
dence, and  to  compare  that  growth  in  its  elements  and 
methods  with  the  history  of  the  common  law  of  England ; 
his  sphere  lies  in  the  present,  his  duties  are  more  practical ; 
but  this  is  the  very  knowledge  which  the  wise  citizen  de- 
mands, who  must  some  day  and  in  some  manner  act  his 
part  in  forming  and  administering  the  laws  of  his  State. 

§  9.  This  work  is  intended  as  a  contribution  toward 
supplying  the  deficiency  which  I  am  sure  has  been  felt  by 
all  instructors.  Its  aim  is  to  explore  somewhat,  though  not 
in  an  antiquarian  spirit,  the  sources  of  the  law  of  England 
and  America ;  to  disclose  the  salient  points  of  contact  be- 
tween jurisprudence  and  history ;  to  bring  out  into  relief  the 
vital  and  organizing  principles  of  the  system,  and  to  suggest 
some  comparisons  between  the  methods  and  results  of  dif- 
ferent national  legislations. 

§  10.  The  municipal  law,  as  actually  administered  in 
Europe  and  America,  is  composed  of  ethics  and  history.  It 
is  impossible  to  neglect  either  of  these  elements  in  any  gen- 
eral outline  of  the  jm'isprudence  of  a  single  nation,  or  in  a 
comparative  view  of  the  systems  of  different  countries. 

§  11.  No  code  of  laws  could  be  endured  by  any  civilized 
people,  unless  it  were  infused  with  the  spirit  of  justice,  a 
regard  to  the  immutable  distinctions  between  right  and 
wrong.  In  order  to  command  the  confidence  and  willing 
obedience  of  the  citizen,  the  supreme  power  of  the  state 
must  assure  him  that  he  will  be  guarded,  encouraged,  and 
rewarded  in  doing  his  duty,  in  following  the  dictates  of  his 
conscience,  and  that  the  wicked,  the  disorganizers  of  society, 
will  h'e  punished  for  their  offences.  As  the  law  professes  to 
interfere  between  individuals  in  all  of  their  mutual  rela- 


8  INTRODUCTION. 

tions,  and  to  dictate  to  them  the  relations  wh  ch  they  shall 
bear  to  the  state,  it  must  provide  that  all  of  this  intercourse 
shall  be  regulated  by  the  principles  of  right ;  that  contracts 
once  entered  into  shall  be  equitably  enforced;  that  property 
shall  be  retained  in  the  hands  of  its  owners  ;  that  personal 
freedom  shall  be  ensured  ;  that  crimes  shall  be  punished. 

§  12.  As  a  nation  advances  in  civilization,  and  laws  are 
developed  from  their  first  simple  and  perhaps  rude  forms, 
we  uniformly  find  that  they  assume  more  and  more  the 
shape  of  pure  ethical  maxims.  The  original  arbitrariness, 
the  once  complete  nationalism,  are  gradually  softened,  and 
those  innate  principles  of  natural  justice  common  to  all 
times  and  peoples,  which  the  Komans  called  jus  gentium^ 
have  freer  play.  Equity  displaces  force ;  right  supplants 
might ;  fewer  instances  of  hardship  and  injustice  occur  in  the 
actual  working  of  the  system  ;  more  frequent  references  are 
made  to  all-pervading  and  fruitful  principles ;  homogeneity 
and  completeness  are  evolved  out  from  tlie  fragmentary  and 
confused. 

§  13.  No  system  or  code  of  laws,  however,  claims  to  be 
in  exact  agreement  with  the  teachings  of  abstract  right  and 
natural  justice.  While  legislation  would  be  unsupportable 
by  any  free  and  Christian  people,  which  should  impose 
upon  the  citizen  the  legal  obligation  of  doing  what  was 
clearly  against  conscience  and  duty,  and  the  voice  of  God, 
speaking  through  the  common  sentiments  of  mankind,  we 
everywhere  meet  with  provisions  forbidding  what  would 
otherwise  be  innocent  and  even  praiseworthy ;  rendering, 
in  short,  illegal,  acts  which  were  before  not  only  harmless, 
but  were  in  strict  harmony  with  the  law  of  nature  and  with 
Christian  morals.  Thus,  it  must  be  conceded  that  the  nat- 
ural right  to  o\Mi  landed  and  personal  property,  implies  the 
right  to  buy  and  dispose  of  it  freely,  and  even  to  transmit 
it  after  death  by  will ;  and  it  would  seem  that  the  natural 
course  for  property  of  all  kinds  to  take  after  the  decease  of 
the  owner,  is  to  be  equally  divided  among  1  is  children. 


INTRODUCTION.  9 

There  is  hardly  any  system  of  municipal  law  which  doee 
not,  to  a  greater  or  less  degree,  interfere  with  these  natural 
rights,  and  break  in  upon  this  natural  order.  With  some, 
restrictions  are  placed  upon  the  acquirement,  with  others, 
upon  the  sale  of  lands  and  chattels.  With  some,  land  de- 
scends wholly  to  the  first  born,  to  the  exclusion  of  all  other 
children ;  with  others,  sons  are  preferred  to  daughters  in  the 
inheritance.  With  some,  the  riglit  of  disposing  by  will  was 
taken  away,  and  by  all  it  is  regulated  by  strict  and  precise 
rules,  while  certain  dispositions  are  absolutely  forbidden. 
The  principles  of  abstract  right  would  hardly  draw  any 
distinction  between  property  in  lands  and  that  in  movables  ; 
yet  almost  all  modern  codes  impress  upon  these  species  of 
possessions  a  difference  broad  and  deep. 

§  14.  Thus  the  maxims  of  justice  and  pure  right  which 
enter  into  every  system  of  municipal  legislation,  are  and 
must  be  modified  by  the  influence  of  the  past,  by  the  na- 
tional history  and  institutions,  by  the  manners,  customs, 
and  religions,  in  short,  by  the  ethnic  life  of  the  people. 
The  study  of  the  law  of  to-day  is  inseparably  blended  with 
the  traditions  of  the  former  times.  It  is  in  them  we  shall 
find  the  sources  of  those  peculiar  national  characteristics 
which  distinguish  the  jurisprudence  of  each  country  from 
that  of  all  other  states.  Whatever  of  any  code  is  based 
upon  natural  right,  will  be  common  to  it  and  to  all  others  ; 
whatever  in  each  is  peculiar,  will  generally  be  found  to 
have  its  roots  in  the  tribal  institutions,  and  to  have  been 
developed  and  modified  by  the  progress  of  the  community 
in  social  order  and  culture. 

§  15.  In  our  study  of  law  we  shall  have  much  to  do, 
then,  with  history.  This,  however,  will  not  be  the  outside 
history,  the  record  of  shifting  dynasties,  of  wars  and  battles, 
of  political  intrigues  and  ambitious  projects  ;  it  will  rather 
be  an  examination  of  the  causes  which  produced  all  these 
movemeiits  on  the  surface — the  life  of  the  races,  the  plant- 
ing, struggling  growth,  and  final  flowering  and  fruitage  of 


10  INTRODUCTION. 

the  seeds  of  institntions — those  causes  which  at  once  precede, 
accompany,  and  follow,  an  advancing  civilization.  Such 
a  history  is  not  one  of  dates  and  events,  hut  of  principles  ; 
not  of  the  outward  form,  but  of  the  animating  spirit. 

§  16.  Municipal  law  is  that  of  a  particular  state.  It  is 
distinguished  from  the  natural  law,  which,  without  the 
interposition  of  any  national  authority,  but  from  the  very 
nature  of  the  relations  of  mankind  to  each  other  and  to  God, 
applies  equally  to  all  people,  and  directs  its  commands  to 
all  persons.  It  is  also  contrasted  with  those  rules  which  are 
acknowledged  by  different  countries  to  be  founded  in  j  ustice 
or  expediency,  and  serve  in  some  measure  to  regulate  the 
.mutual  intercourse  of  states,  and  are  in  modern  times 
called  the  law  of  nations.  Among  the  Romans,  the  body 
of  laws  w^hich  governed  the  Roman  commonwealth,  which 
were  peculiar  to  it,  which  distinguished  it  from  other  peo- 
ple, was  called  the  civil  law,  lex  civilis,  or  law  ajjplicable 
to  the  citizen.  They  acknowledged  other  rules,  however, 
which  they  termed  the  jus  gentium,  law  of  nations,  because 
its  precepts  were  common  to  and  binding  upon  all  peoples 
and  through  all  times,  and  were  based,  therefore,  upon  prin- 
ciples of  abstract  right  and  obligation.  Our  use  of  the  term 
municipal  law  is  not  exactly  synonymous  with  the  lex 
civilis  of  the  Romans  ;  the  latter  was  more  restricted  in  its 
meaning.  The  pure  and  simple  lex  civilis  of  the  Romans  in 
the  progress  of  time  became  greatly  enlarged,  and  enriched 
by  additions  drawn  from  the  never  failing  fountains  of  the 
Jus  gentium,  and  tlte  whole,  blended  into  a  homogeneous 
mass,  w^as  the  law  of  the  Roman  state.  Thus  the  laws  of 
England,  of  America,  or  of  France,  drawing  their  princi])les 
from  many  of  the  same  sources,  preserving  many  elements 
in  common,  acknowledging  the  claims  of  natural  right  and 
justice,  and  still  differenced  by  many  civil  peculiarities,  are 
each  a  municipal  law,  having  no  authority  beyond  the 
bounds  of  tlieir  separate  dominions. 

§  17.  Sir  William  Blackstone  defines  municipal  law  to 


INTRODUCTION.  11 

be,  "  A  rule  of  civil  conduct  prescribed  by  the  supreme 
power  in  the  state,  commanding  what  is  right,  and  prohib- 
iting what  is  wrong."  This  definition  has  been  success- 
fully criticized,  as  being  either  tautological  or  incorrect.  I 
shall  define  municipal  law  to  be,  The  body  of  rules  by 
which  the  supreme  power  in  a  state  is  guided  in  its  govern- 
ing action.  The  theory  of  the  construction  or  creation  of 
these  rules  is  the  science  of  legislation.  The  science  of 
jurisprudence  is  conversant  with  their  interpretation  and 
application. 

§  18.  The  rules  which  compose  the  municipal  law  are 
susceptible  of  numerous  divisions  and  classifications,  which 
greatly  facilitate  their  study,  the  tracing  their  origin,  his- 
tory, and  relations.  The  first  divisions  which  I  shall  mention 
have  reference  to  their  subject  matter,  and  may  be  stated  as, 

§  19.  I.  Political. — The  rules  embraced  in  this  class 
relate  to  the  constitution  of  the  governing  machinery  of  the 
state,  and  the  internal  organization  of  the  public  body. 
They  include  the  written  constitutions  of  the  American 
commonwealths,  and  the  traditional  organic  law  of  Eng- 
land j  they  prescribe  the  character,  number,  powers,  and 
duties  of  rulers,  the  composition  of  legislatures  and  parlia- 
ments, the  jurisdiction  of  courts,  the  divisions  into  counties, 
towns,  and  municipalities,  the  creation  of  local  magistrates, 
the  construction  of  roads  and  bridges,  the  appointment  or 
election  of  officers,  and  the  thousand  other  ways  in  which 
the  state  interferes  to  control  the  action  of  citizens  in  mat- 
ters which  have  direct  reference  to  the  nation  and  to  the 
public  good. 

§  20.  In  America  this  division  of  the  municipal  law  is 
almost  entirely  made  up  of  the  State  and  Federal  Constitu- 
tions, and  the  statutes  of  the  State  and  Federal  Legislatures. 
In  England  a  great  part  of  it  is  traditional,  or  has  only 
received  its  authoritative  character  through  the  decisions 
of  courts.      Except  so  far  as  it  affects  the  private  rights  of 


12  INTRODUCTION. 

the  citizen,  and  the  organization  and  powers  of  tourts,  this 
work  will  have  little  to  do  with  political  law. 

§  21.  II.  PurvATE. — ^This  division  embraces  the  great 
body  of  the  municipal  law  regulating  the  rights  and  duties 
of  individuals  among  each  other  and  toward  the  state.  It 
furnishes  by  far  the  largest  part  of  the  questions  presented 
for  judicial  decision  in  determining  the  disputes  of  litigant 
parties.  While  the  public  or  political  law  is  generally 
fixed,  certain,  and  sharply  defined,  touching  upon  a  com- 
paratively few  particulars,  the  private  law  is  progressive, 
sometimes  not  clearly  announced,  ramified  into  a  multitude 
of  subdivisions,  to  meet  the  ever-changing  complications 
which  are  constantly  arising  in  the  busy  life  of  the  present. 

§  22.  The  private  law  may  again  be  divided,  having  ref- 
erence to  its  subject  matter,  into 

1.  The  Civil  Law,  which  includes  those  rules  that  pre- 
scribe and  control  the  rights,  duties,  and  actions  of  the 
citizens  among  each  other,  which  regulate  property,  and 
determine  the  status  of  individuals  ;  and, 

§  23.  2.  The  Criminal  Law,  which  is  confined  to  the 
defining  of  crimes,  the  ascertaining  of  criminals,  and  the 
apportionment  and  infiiction  of  punishments. 

The  term  civil  law  is  here  used  in  its  popular  sense,  as 
generally  employed  in  this  connection  by  English  and 
American  legal  writers,  and  not  in  its  more  technical  sig- 
nification, as  the  law  of  a  state. 

§  21.  The  civil  law  may  again  be  separated  into  three 
subdivisions : 

1.  Those  rules  which  relate  to  the  general  rights  and  obli- 
gations inherent  in  all  persons,  as  members  of  the  body  politic ; 

2.  Those  rules  which  define  the  condition  and  status  of 
particular  classes  of  persons,  and  the  rights  and  duties  inci- 
dent ui)on  such  peculiar  status  ;  and 

3.  Those  rules  which  regulate  -jroperty,  and  determine 
the  rights  and  duties  of  owners. 


INTRODUCTION.  13 

§  25.  The  law  of  property  following  a  simple  and  evi- 
dent line  of  demarkation,  is  again  classified  into  two 
groups : 

1.  That  which  refers  to  movables,  including  the  law  of 
personal  contracts,  commercial  and  maritime  law,  and  the 
rules  of  succession  to  goods  and  chattels  ;  and 

2.  That  which  relates  to  immovables,  or  lands. 

§26.  The  municipal  law  of  England  and  America,  re- 
sembling in  this  particular  that  of  every  civilized  country 
of  Europe,  may  be  classified  according  to  its  several  na- 
tional origins.  As  has  already  been  said,  our  jurisprudence 
is  composite,  and  its  roots  are  to  be  traced  through  many 
mutations  of  empires  and  peoples,  back  into  a  remote  past, 
where  the  first  germs  are  rather  to  be  suspected  than  cer- 
tainly ascertained.  Still,  when  we  leave  the  vague  confines 
of  a  time  and  people  which  had  no  literature  to  preserve  a 
definite  record  of  passing  events,  where  we  must  rather 
argue  the  existence  of  institutions  and  customs  from  their 
plain  presence  in  subsequent  generations, — when  we  leave 
these  regions  of  mere  tradition,  and  come  down  into  the 
realms  of  definite  history,  we  shall  soon  discover  the  evi- 
dent traces  of  many  of  the  legal  rules  which  govern  and 
compel  our  actions  in  the  present  day. 

§  27.  No  modern  European  nation  is  composed  of  a 
single  race,  and  least  of  all  are  the  English.  Celt,  Saxon, 
Dane,  and  Norman  have  all  contributed  their  elements  to 
form  the  English  nationality,  and  with  the  separate  streams 
of  blood  flowing  in  one  course  of  descent  through  the  pulses 
of  the  English  heart,  they  have  added  their  diverse  customs 
and  institutions  to  be  amalgamated  into  the  English  muni- 
cipal law.  And  through  all  of  this  mass,  the  Roman  juris- 
prudence has  penetrated,  and  infused  its  wonderful  vitality 
and  power.  The  study  of  these  various  elements  will  give 
us  the  history  of  the  law. 

§  28.  We  shall  then  divide  the  municipal  law,  having 
reference  to  nationality,  and  the  sources  whence  it  has  been 


14  INTKODUCTION. 

derived,  and  the  history  of  its  gradual  progress  and  develop 
ment,  into  several  classes. 

I.  The  Saxon,  Gkemanic,  and  other  Tribal  Customs. 
— Tlie  long  and  virtually  uninterrupted  sway  of  the  Saxons 
in  England,  and  the  fact  that  they  have  contributed  the 
groundwork  of  our  language,  the  grammatical  forai  into 
which  it  is  cast,  and  most  of  the  words  in  common  use, 
would  lead  us  to  suppose  that  to  them  we  are  to  look  for 
the  origin  of  much  of  our  legal  maxims  and  principles.  A 
cursory  examination  even,  of  the  history  of  English  juris- 
prudence will  not  disappoint  this  expectation.  Many  of  the 
most  cherished  and  carefully  guarded  portions  of  our  law 
are  drawn  from  a  Saxon  source.  This  is  especially  true  of 
those  fundamental  or  constitutional  provisions  which  pro- 
tect the  citizen  in  the  exercise  of  his  personal  rights,  which 
defend  individual  liberty  against  the  encroachments  of 
power,  which,  in  their  natural  development,  have  had  the 
effect  to  render  England  and  America  free  commonwealths. 

The  traces  of  the  customs  of  the  aboriginal  inhabitants 
of  Britain  before  they  were  subdued  by  the  Romans,  or 
were  again  conquered  by  the  Saxons,  and  of  the  Danish 
rule,  will  be  found  much  more  vague  and  uncertain. 

§  29.  11.  The  Feudal  System. — The  Germanic  inva- 
sions into  Gaul,  Spain,  and  Italy,  left  a  vast  deposit  of  insti- 
tutions which  have  strongly  marked  the  national  laws  of 
Europe  to  the  present  day.  Among  these  the  most  im- 
portant and  the  most  lasting  was  the  feudal  system. 
Strengthened  in  Britain  by  the  invasion  of  the  Normans, 
it  became  the  very  foundation  of  the  English  law  of  landed 
property,  and  of  social  classes  and  divisions.  It  has  trans- 
mitted its  evident  effects  into  the  fimiliar  rules  of  our  own 
times,  and  no  portion  of  legal  history  will  be  found  more 
Interesting  and  more  instructive  to  the  student  than  that  of 
the  Feud. 


INTEODUCTION.  15 

§  30.  III.  The  Maritime  Codes  of  the  Middle  Ages 
— -N either  the  ancient  Saxons,  nor  the  feudal  lawgivers, 
made  any  provision  for  the  wants  of  commerce  and  trade. 
During  the  Middle  Ages,  however,  certain  free  maritime 
cities  grew  into  importance  and  power  ;  their  commerce 
became  extended,  and  the  demand  for  laws  regulating  it 
resulted  in  the  compilation  of  several  local  codes.  As  com- 
merce and  trade  are  cosmopolitan,  and  as  these  collections 
of  laws  were  recommended  by  their  adherence  to  the  max- 
ims of  equity,  they  were  very  generally  adopted  into  the 
jurisprudence  of  other  countries,  where  the  increasing  ex- 
tent of  intercommunication  and  traffic  seemed  to  require 
some  such  addition  to  the  several  national  systems.  In  this 
common  origin  we  may  find  one  of  the  causes  for  the 
marked  general  resemblance  between  those  portions  of  the 
municipal  law  of  different  civilized  states  which  specially 
regulate  maritime  and  commercial  subjects. 

§  31.  ly.  The  Eoman  Jueispkudence. — It  is  an  estab- 
lished fact  that  the  Roman  element  in  the  laws  of  modeiTi 
European  states  of  the  continent  is  preponderating.  Eng- 
lish writers  have  been  slow  to  perceive  or  to  concede  that 
to  the  same  source  is  referable  a  very  great  part  of  their 
own  municipal  law.  Through  several  channels  have  the 
streams  from  the  imperial  reservoir  poured  their  contribu- 
tions to  enrich  the  legal  resources  of  the  once  province  of 
Britain.  During  the  three  hundred  and  fifty  years  after 
the  Roman  dominion  was  established  over  the  J^orthern 
island,  until  it  was  overthrown,  the  local  language  and  laws 
had,  in  a  great  measure,  given  place  to  those  of  their  con- 
querors. This  was  according  to  the  universal  practice  of 
the  Roman  government,  and  although  the  change  was  not 
by  far  so  complete  as  in  the  provinces  of  Gaul  and  Spain, 
yet  it  was  sufficiently  thorough  and  continued  for  such  a 
time  as  to  render  the  effects  uneffaceable. 

§  32.  Subsequently,  when   the   Saxon  rule  had  swept 


16  INTRODUCTION. 

away  all  outward  traces  of  the  Imperial  policy,  and  when 
the  ]!^orinaiis  had  in  turn  introduced  the  strict  law  of  feuds, 
the  ecclesiastics,  then  possessing,  all  over  Europe,  the  learn- 
ing as  well  in  jurisprudence,  medicine,  and  the  liberal  arts, 
as  in  theology,  assumed  an  active  share  in  the  administra- 
tion of  justice,  and  were,  to  a  great  extent,  guided  by  those 
compilations  which,  made  imder  the  direction  of  the  Em- 
peror Justinian,  summed  up  all  former  Roman  legislation. 
Bracton,  one  of  the  oldest  of  English  legal  text  writers,  who 
flourished  in  the  beginning  of  the  thirteenth  century,  shows 
a  familiarity  with  the  Roman  law,  and  does  not  hesitate  to 
quote  largely  from  its  authorities,  as  though  it  were  the 
law  of  England. 

§  33.  At  a  much  later  period  the  judges  of  English 
courts  have  not  been  slow  to  avail  themselves  of  the  en- 
lightened and  philosophical  investigations  of  the  Roman 
jurists,  and  to  borrow  freely  from  them  to  supply,  as  new 
cases  and  circumstances  were  continually  arismg,  the  omis- 
sions of  the  old  common  law. 

We  shall  find  no  subject  in  the  course  of  our  studies 
more  interesting  than  the  histor}^  of  the  Roman  law,  as  it 
has  been  preserved  through  the  Middle  Ages,  under  the 
overwhelming  weight  of  the  feudal  system,  and  as  it  has 
gradually  extended  its  influence  and  asserted  its  supremacy, 
until  it  has  come  to  be  an  acknowledged  element  in  the 
jurisj^rudence  of  England,  and  has,  to  a  yet  greater  degree, 
moulded  that  of  America. 

§  34.  Y.  The  Demands  of  a  gradually  progressive 
Civilization. — I  have  added  this  division,  not  because  it  is 
strictly  a  national  source,  for  it  is  common  to  the  enlight- 
ened jurisprudence  of  all  states,  but  because  to  it  England 
and  America  and  every  country  owe  the  addition  of  by  far 
the  greater  portion  of  the  familiar  legal  rules  of  their  exist- 
ing municipal  systems.  This  demand,  answering  to  new 
complications  of  business  and   struggles  of  enterprise,  to 


INTRODUCTION. 


17 


new  relations  of  society,  is  continually  extending  old  prin- 
ciples, discovering  fresh  analogies,  borrowing  from  other 
natioiial  codes,  and  inventing  additional  regulations.  Its 
operations  and  effects  are  not  peculiar  to  England  and 
America ;  they  built  up  the  vast  jurisprudence  of  Rome 
upon  the  rude  foundation  stones  of  the  laws  of  the  Decem- 
virs ;  they  have  in  the  same  manner  constructed,  upon 
bases  more  or  less  broad  and  deep,  the  legal  systems  of 
every  Em'opean  state. 

§  35,  The  municipal  law  of  England  and  of  each  of  the 
American  States  is  susceptible  of  another  most  important 
division  having  reference  to  its  manner  of  promulgation,  to 
the  methods  by  and  through  which  it  becomes  an  authori- 
tative rule,  compelling  the  obedience  of  the  subject.  This 
classiftcation,  to  which  I  am  about  to  refer,  is  not  peculiar 
to  England  and  to  America,  it  is  to  be  found  in  the  juris- 
prudence of  all  European  states  which  have  made  any  ad- 
vance in  civilization,  and  was  strongly  marked  in  the 
growth  of  the  law  of  Eome.  A  careful  examination  of  the 
history  of  all  nations  which  have  progressed  from  compar- 
ative barbarism  to  a  condition  of  high  culture,  will  disclose 
a  general  resemblance  in  the  forms  by  w^iich  this  progress 
has  been  made  evident  in  the  law,  through  its  development 
from  rudeness  and  simplicity  to  refinement  and  comprehen- 
siveness. 

The  two  grand  divisions  of  form  are, 

§  36.  1.  The  Statute  Law,  including  the  acts  of  Par- 
liament and  legislatures  in  England  and  America,  and  the 
decrees  of  kings  and  emperors  in  tjiose  countries  where  the 
legislative  and  executive  departments  are  united  in  one 
person.  "Whenever  the  legislature  has  spoken,  in  general 
its  voice  is  supreme ;  it  oven'ides  the  declarations  of  pre- 
ceding legislatures,  and  the  decisions  of  courts.  In  America 
the  legislative  functions  are  controlled  by  the  provisions  of 
the  Federal  and  State  Constitutions  ;  which  are  themselves 
2 


18  INTRODUCTION. 

only  statutes  of  a  nioi-e  solemn  and  enduring  nature.  In 
England,  Parliament  can  act  upon  any  subject ;  in  the 
United  States,  the  National  Congress  can  only  exercise 
sucli  powers  as  are  directly  conferred  upon  it,  or  as  are 
necessarily  implied  by  the  letter  of  the  organic  law,  while, 
on  the  other  hand,  the  State  Legislatures,  therein  resem- 
bling the  English  Parliament,  possess  whatever  authority  is 
not  forbidden  to  them  by  the  Federal  or  local  Constitutions. 
Without  doubt,  the  Parliament  of  Great  Britain,  and  the 
Legislatures  of  all  or  most  of  the  several  States  of  the  Union, 
could  abolish  all  other  forms  of  the  municipal  law,  and  em- 
body the  whole  in  one  comprehensive  statutory  code.  The 
functions  of  the  courts  in  enlarging  legal  principles,  and 
adding  to  legal  dogmas  might  be  taken  away,  and  they 
might  be  restricted  to  the  simple  office  of  applying  the  fixed 
provisions  of  a  statute  in  deciding  the  controversies  brought 
before  them.  This  has  been  attempted  in  some  countries, 
and  with  what  success  we  shall  see  in  the  course  of  our 
inquiries. 

§  37.  11.  The  UNWKmEN  Law. — The  term  "  unwritten  " 
is  not  happily  chosen,  but  it  has  grown  into  common  use 
with  English  and  American  writers,  and,  although  not  ex- 
pressive, serves  to  designate  the  class.  This  form  of  a 
national  jurisprudence  includes  all  that  is  not  enacted  by 
the  legislative  will  into  the  shape  of  statutes.  Within  it  are 
to  be  found  most  of  the  scientific  unfoldings  of  principle  and 
of  gradual  development  through  the  progress  of  the  national 
civilization.  In  England  and  America  it  compreliends  the 
great  body  of  the  private  civil  maxims  and  regulations,  and 
in  England  much  that  is  political.  It  has  sometimes  been 
called  customary  law,  as  though  it  had  its  origin  and  vitality 
m  long  prevailing  general  customs  of  the  realm.  This  sup- 
position is  not  strictly  true.  When  we  go  back  to  the  ear- 
liest periods  of  the  nation's  existence,  we  shall  find  in  the 
tribal  customs  the  seeds,  the  germinating  powers  of  many 


INTRODUCTION.  19 

legal  principles  ;  but  as  the  ages  pass  by,  these  customs  are 
lost,  society  changes  its  outward  forms,  new  interests  arise, 
new  demands  are  made  upon  the  law.  To  meet  these  inces- 
sant demands,  the  law  must  continually  add  to  its  former 
resources ;  the  questions  of  to-day  must  be  resolved  by  anal- 
ogies drawn  from  the  cases  of  yesterday  ;  from  the  seeds  of 
the  ol(]^  the  ever-ripening  fruit  of  the  present  is  produced. 
Thus  is  the  unwritten  law  called  into  being. 

§  38,  In  England  and  most  of  the  United  States,  the 
term  common  law  is  used  to  designate  so  much  of  this  un- 
written spontaneous  growth  as  has  not  been  altered  by  stat- 
utes, or  modified  by  the  additions  and  changes  of  modern 
decisions.  Sir  "William  Blackstone  and  many  other  writers, 
both  English  and  American,  speak  of  it  as  a  system  or  code 
always  existing,  not  now  or  at  any  other  time  within  the 
limits  of  human  memory  and  historical  research  invented, 
or  enacted,  but  only  from  time  to  time  stated,  brought  into 
active  use,  and  practically  enforced  by  the  courts.  This  is 
certainly  conveying  a  very  false  idea  of  the  law  ;  it  is  treat- 
ing a  figure  of  speech  as  though  it  were  history.  The  com- 
mon law  of  England  is  not  now,  and  never  was,  and  never 
will  be  a  complete  system,  existing  partly  in  actual  pre- 
cepts, and  partly  in  an  undefined  or  cloudy  state,  ready  to 
have  the  curtain  rolled  back  and  the  law  discovered  by 
judicial  action ;  it  is  rather  a  power  continually  reproducing 
itself,  taking  up  fresh  material,  and  converting  it  into  new 
regulations,  new  maxims,  new  applications,  in  short,  a  new 
code.  The  unwritten  law,  thus  builded  up  without  the  aid 
of  statutes,  is  not  peculiar  to  England  and  countries  deriving 
their  institutions  through  British  descent.  We  shall  dis- 
cover that  the  jurisprudence  of  Rome  was  evolved  in  a 
similar  manner,  that  the  legislating  judges  of  England  and 
America  had  their  counterparts  in  the  Roman  tribunals. 

§  39.  This  phase  of  the  law  in  England  and  the  United 
States  receives  its  authoritative  sanction  only  in  the  de- 
cisions of  courts.     Learned  jurists  and  text  writ<'-''s  maj 


20  tNTKODUCTION. 

discuss  piinciples,  compare  analogies,  draw  conclusions 
wliicli  are  recommended  by  their  equity  to  the  judgment 
of  all  good  citizens ;  these  opinions  may  have  the  greatest 
weight  in  influencing  the  minds  of  judges,  they  may  be  so 
convincing  as  to  leave  no  reasonable  doubt  of  their  truth, 
they  may  be  acted  upon  for  a  long  period  of  time  as 
guides  in  the  operations  of  business,  but  it  is  not  until  a 
competent  court  has  put  its  seal  of  approval  upon  them, 
that  they  rise  from  the  cofidition  of  mere  speculations,  and 
become  endowed  with  life  as  the  supreme  law  of  the  land. 
Wlien  thus  declared,  and  I  may  say  with  truth,  when  thus 
enacted,  the  unwritten  law  has  all  the  binding  force  and 
efficacy  of  the  most  solemn  statute.  Its  only  badge  of 
inferiority  is,  that  the  legislature  may  step  in  and  sweep  it 
all  away,  and  when  its  potent  voice  has  once  spoken,  the 
com"ts  are  powerless  to  resist ;  they  can  only  expound  the 
statute.  Most  English  and  American  writers  use  the  term 
"  common  law  "  in  a  restricted  technical  sense,  as  meaning 
that  portion  of  the  municipal  law  which  is  distinguished 
from  equity  and  admiralty  law.  I  have  employed  it  in  a 
more  enlarged  and  comprehensive  sense,  regarding  these 
divisions,  not  as  in  any  extent  antagonistic,  but  as  forming 
essential  parts  of  one  grand  whole,  the  unwritten  jurispru- 
dence of  the  state. 

§  40.  The  courts,  which  are  those  portions  of  the  polit- 
ical machinery  of  the  nation,  through  which  this  form  of 
legislation  finds  its  utterance,  nuiy  be  divided  into  four 
generic  classes,  whether  there  be  separate  tribunals  allotted 
to  each  class,  or  whether  one  and  the  same  court  has  juris- 
diction over  the  matters  embraced  in  all.    These  courts  are: 

1.  Tlie  Common  Law,  or  "  Law  "  Courts. 

2.  The  Equity  Courts. 

3.  The  Ecclesiastical  Courts  ;  and 

4.  The  Admiralty  Courts. 

It  is  not  my  pui-pose  in  this  introductory  chapter  to  give 
any  complete  statement  of  the  distinguishing  features  and 


INTKODUCTION. 


21 


judicial  functions  of  these  several  tribui  als,  but  on-y  to 
Btate  in  a  few  words  the  peculiar  province  of  each,  reserving 
the  more  full  description  to  a  subsequent  portion  of  the 
work. 

§  41.  1.  The  Common  Law  Courts  had  cognizance  of 
such  questions  as  were  decided  by  the  rules  of  the  technical 
common  law.  In  them  the  determining  power  was  confided 
to  two  entirely  distinct  bodies — ^^the  jury  whose  province  it 
was  solely  to  decide  the  disputed  facts,  and  the  judges  who 
enuuciated  the  law,  either  by  applying  well-known  and 
established  princij)les  to  the  circumstances  of  the  case,  or 
by  actually,  though  not  often  avowedl}^,  enacting  new  rules. 
Thus  a  judgment  is  reached  by  the  joint  action  of  these 
agencies.  In  quite  recent  times,  through  the  intervention 
of  statutes,  both  in  England  and  America,  this  dual  char- 
acter of  the  common  law  courts  has  been  to  some  extent 
broken  in  upon,  and  the  judges  have  been  invested  with  the 
power  in  numerous  instances  of  deciding  the  facts  as  well 
as  determining  the  law. 

§  42.  From  the  very  constitution  of  these  courts,  the 
forms  of  remedy  by  which  they  proceeded  were  necessarily 
simple ;  the  decisions  of  a  jury  must  be  a  yea,  yea,  or  a 
nay,  nay.  So,  with  a»very  few  exceptions,  the  relief  sought 
by  a  litigant  party  was  in  the  shape  of  pecuniary  damages. 
He  complained  that  his  adversary  had  trespassed  upon  his 
lands,  liad  wrongfully  taken  and  carried  away  his  property, 
had  used  violence  to  his  person,  had  traduced  his  character, 
had  broken  a  contract,  had  refused  to  pay  an  indebtedness, 
or  had  infringed  upon  his  legal  rights  in  a  thousand  various 
ways,  and  he  asked  as  a  satisfaction  for  such  injuries,  that 
the  courts  should  adjudge  the  offender  to  pay  him  a  suitable 
amount  of  money.  It  was  the  office  of  the  jury  to  decide 
whether  these  charges  were  true,  and  if  so,  how  great  a 
sum  would  be  a  compensation ;  it  was  the  duty  of  the  judge 
to  declare  whether  the  acts  done  by  the  defendant  amounted 


22  INTRODUCTION. 

to  a  breach  of  the  law,  and  gave  the  plaintifi  a  legal  claim 
upon  him  for  reparation.  Without  going  with  any  partic- 
ularity into  the  exceptions  to  this  general  form  of  remedy, 
it  is  sufficient  to  say  that  the  principal  ones  were  to  be 
found  in  those  cases  where  the  moving  party  demanded 
judicial  aid  to  restore  him  to  the  possession  of  certain  spe- 
cific chattels  or  of  certain  definite  lands. 

The  same  class  of  courts  has  also  the  exclusive  power 
of  trying  most  persons  charged  with  crimes  and  offences 
against  the  state. 

§  43.  2.  Courts  of  Equity. — The  jurisdiction  of  these 
tribunals  was  for  a  long  period  of  time  in  England  exercised 
by  a  high  officer  of  the  realm,  called  the  chancellor,  but 
many  other  judges  have  since  been  clothed  with  the  same 
functions.  It  is  evident  that  the  constitution  and  forms  of 
remedy  of  the  "  law  "  courts  absolutely  forbade  them  to 
entertain  a  vast  number  of  questions  which  must  be  decided 
by  rules  inapplicable  to  the  sharply-defined  decisions  of  a 
jury.  A  system  of  municipal  law  would  miserably  fail  of 
its  primary  object  in  affording  exact  justice,  if  it  neglected 
to  enforce  rights  and  duties  which  were  not  comprehended 
in  mere  pecuniary  mulcts,  or  the  delivery  of  the  possession 
of  chattels  and  lands.  These  rights  and  duties,  and  the 
provisions  of  the  law  regulating  them,  are  called  equity, 
and  the  tribunals  in  which  they  are  enforced  are  equity 
courts.  Tliey  dispense  with  the  jury,  and  commit  the  con- 
sideration of  fact  and  law  to  the  judge  who  constitutes 
the  court.  He  is  able  to  i:>ronounce  a  judgment  which 
shall  allot  different  rights  and  obligations  to  different  suit- 
ors ;  he  can  enforce  remedies  utterly  beyond  the  capacity 
of  a  jury.  Yet  the  rules  by  which  he  is  guided  are  as  much 
a  part  of  the  municipal  law  of  the  state,  as  those  which 
contr(jl  the  action  of  any  other  tribunals  ;  they  only  touch 
upon  subjects  above  and  beyond  the  reach  of  "  law  "  courts. 
§  44.  3.  The  Ecclesiastical  Courts. — ^Tliese  were  of  a 
very  ancient  origin.     They  were  the  diocesan  tribunals  of 


INTRODUCTION. 


23 


the  bishops  for  trying  matters  directly  connected  with  the 
church,  and  thence  came  to  acquire  jurisdiction  over  other 
questions  which  were  considered  as  having  an  intimate  con- 
cern with  a  man's  spiritual  welfare,  or  which,  in  their  forci- 
ble language,  affected  "  the  soul's  health."  So,  besides  tlieir 
power  to  determine  cases  arising  in  purely  ecclesiastical 
law,  they  have  cognizance  of  the  probate  of  wills,  of  the 
settlement  of  the  personal  estates  of  the  dead,  and,  until  a 
late  English  statute,  of  granting  limited  divorces,  and  hear- 
ing other  matrimonial  causes.  In  this  country  no  civil  tri- 
bunals possess  any  ecclesiastical  jurisdiction.  In  many  of 
the  States  there  are  surrogate  courts,  or  probate  courts, 
which  perform  the  functions  of  the  English  ecclesiastical 
courts  in  the  settlement  of  successions. 

§  45.  4.  The  Admiralty  Courts  have  to  do  with  certain 
classes  of  questions  and  subjects  arising  upon  tlie  high  seas. 

In  neither  of  the  two  latter  classes  is  the  intervention  of 
a  jury  required.  The  judges  decide  the  disputed  facts  and 
apply  to  them  the  law. 

§  46.  In  this  country  the  supreme  court  of  the  United 
States,  and  its  subordinate  branches,  the  circuit  and  district 
courts,  have  jurisdiction  of  cases  at  law,  in  equity,  and  in 
admiralty,  but  can  entertain  none  of  the  questions  which 
belong  to  the  ecclesiastical  courts  of  England.  In  the  sev- 
eral States  there  is  hardly  any  unifoi'mity  in  the  composition 
of  the  general  tribunals,  or  the  distribution  of  their  powers. 
In  some,  the  law  and  equity  branches  are  distinct ;  in  most, 
however,  both  classes  of  judicial  duties  are  confided  to  the 
same  judges.  All  admiralty  jurisdiction  is  taken  away 
from  the  State  courts,  by  the  National  Constitution. 

§  47.  It  is  through  the  action  of  these  classes  of  courts, 
continued  through  generations  and  centuries,  considering 
all  tlie  questions  which  can  be  evolved  out  of  the  co'iten- 
tions,  the  conflicting  interests  and  entangled  relations  of 
society',  that  the  body  of  the  unwritten  law  has  been  built 
up  by  gradual   accretions,  each  new  addition   firmly  ce- 


24  INTRODUCTION. 

mented  to  what  has  been  laid  before,  and  the  whole  closely 
knit  together  by  analogies  and  common  principles,  running 
through  and  through  like  the  ties  and  braces  of  a  vast 
framework. 

§  48.  I  maj  appropriately  close  this  general  outline  by 
a  short  statement  of  some  of  the  peculiar  advantages  and 
faults  which  belong  to  both  of  the  two  grand  divisions  of 
our. national  jurisprudence. 

1.  The  statute  has  this  advantage,  that  it  only  acts  pro- 
spectively, or  from  the  time  of  its  enactment.  It  does  not 
relate  back,  and,  by  its  change  of  existing  rules,  overthrow 
and  sweep  away  rights  which  had  become  vested  under  the 
operation  of  former  regulations. 

2.  The  statute  law  has  the  further  advantage  of  being 
generally  plain,  distinct,  and  certain.  It  leaves  no  doubt 
as  to  the  citizen's  rights  and  duties,  which  are  the  partic- 
ular subjects  of  its  provisions ;  there  is  no  room  for  argu- 
ment and  discussion,  keeping  a  question  open  until  it  has 
been  passed  upon  by  some  competent  tribunal.  I  say  this 
is  generally  the  case,  but  perhaps  I  have  rather  described 
an  ideal  code  of  legislative  enactments — have  rather  repre- 
sented the  point  to  which  statutes  might  be  brought,  than 
the  actual  state  of  the  law  resulting  from  them.  For  it  is 
certainly  true,  that  from  a  carelessness  in  drawing  statutes, 
from  inaccuracy  of  expression,  and,  above  all,  from  neglect 
in  consideiing  and  providing  for  their  related  consequences, 
there  is  often  great  room  for  question,  and  an  absolute  ne- 
cessity for  judicial  construction  to  determine  their  meaning. 

§  49.  3.  On  the  other  hand,  and  this  is  an  evil  of  the 
gieatest  magnitude  inherent  in  the  system,  the  statute  law 
is  rigid  inflexible,  unprogressive,  incapable  of  adapting 
itself  to  new  circumstances  and  new  cases.  It  cannot  be 
modified  and  bent  by  judicial  construction  so  as  to  meet 
the  requirements  of  peculiar  circumstances,  to  prevent  in- 
justice and  to  maintain  equity.  It  does  not  smoothly  and 
steadily  glide  in  and  adapt  itself  to  the  whole  body  of  the 


INTRODUCTION.  25 

.aw,  but  thrusts  itself  in  rudely  auo  uneomproinismgly,  pro- 
ducing effects  unseen  at  the  first,  and,  perhaps,  causing 
evils  greater  than  those  it  was  intended  to  remedy. 

§  50.  In  the  unwritten  law  we  shall  find  corresponding 
advantages  and  faults. 

1.  It  is  retrospective  in  its  action.  The  decisions  of  a 
court  of  authority  sufiicient  to  alter  or  establish  the  law, 
reach  back  as  well  as  forward,  and  affect  events,  titles,  and 
property  considered  long  passed  or  settled.  Tlie  particular 
rule  under  consideration  is  not  only  changed  from  that  time 
forward,  but  it  is  deemed  to  have  been  in  accordance  with 
the  new  doctrine  through  time  passed.  Thus  the  rights  of 
property  might  be  seriously  disturbed,  and  what  was  once 
sure  become  again  uncertain.  This  is  not  a  statement  of 
what  does  often  take  place,  but  of  what  may  always  possibly 
happen. 

§  51.  2.  The  great  distinguishing  feature  of  the  unwrit- 
ten law,  thus  announced  by  the  authoritative  decisions  of 
courts,  the  feature  which  is  an  advantage  so  pi'eemineut 
that  it  is  always  found  as  a  portion  of  every  municipal  sys- 
tem of  law,  and  which  gives  the  English  and  American 
jurisprudence  its  rare  value,  is  that  it  is  elastic,  flexible, 
progressive,  self-developing,  accommodating  itself  to  the 
change  of  circumstances,  growing  with  the  growth  and  ever 
keeping  pace  with  the  progress  of  society  in  culture  and 
refinement.  It  is  thus  at  once  a  cause  and  effect  of  civil- 
ization, encouraging  new  advances  of  the  people,  and  in 
turn  receiving  a  fresh  impetus  from  them.  It  is  not  stern 
and  inflexible,  like  the  statutory  code,  but  can  be  bent  and 
moulded  to  meet  the  constant  succession  of  new  cases  and 
fresh  complications.  Thus,  while  pursuing  definite  prin- 
ciples and  rules,  it  need  not  arbitrarily  interfere,  but,  guided 
by  reason  and  expediency,  it  can  constantly  prevent  injus- 
tice, and  promote  good  order  and  prosperity. 

§  52.  'Tlie  former  of  these  peculiarities  requires  that  the 
unwritten  law  should  be  based  on  and  should  closely  follow 


26  INTRODUCTION. 

precedents  or  former  decisions,  or  otherwise  there  could  be 
no  stability  or  security  in  the  tenures  of  property  and  the 
rights  of  owners.  When  a  legal  doctrine  has  once  been 
fairly  considered  and  settled  by  the  judgment  of  a  superior 
court,  it  shoiild  not  be  carelessly  reversed,  and  a  different 
rule  adopted,  even  though  it  be  conceded  that  the  original 
decision  was  wrong,  and  that  the  law  would  be  better  were 
it  otherwise.  It  is  a  lesser  evil  to  endure  the  effects  of  a 
rule  not  quite  consonant  with  the  greatest  convenience,  or 
even  with  the  purest  morals  or  most  impartial  justice,  than 
to  shake  confidence  in  the  stability  of  the  legal  system  by 
reckless  tearing  down  and  rebuilding. 

§  53.  The  municipal  law  of  England  and  America,  so 
far  as  it  is  the  offspring  of  judicial  decision,  has  constantly 
adhered  to  this  salutary  rule.  Prior  cases,  involving  the 
same  questions,  or  suggesting  analogies  near  or  remote,  are 
continually  cited  and  deferred  to  by  the  courts.  The  prece- 
dents are  the  anchors  which  hold  the  national  jurisprudence 
firmly  in  its  place,  and  prevent  it  from  being  swept  away 
by  the  force  of  caprice  or  mere  theory. 

§  54.  On  the  other  hand,  the  second  peculiarity  requires 
that  this  adhesion  to  precedents  should  not  be  blind  and 
slavish,  but  that  the  bands  which  secure  the  law  to  the  past, 
should,  as  occasion  demands,  be  gradually  loosened  and 
cast  off.  Thus  the  elements  of  stability  and  elasticity,  of 
fixedness  and  progressive  development,  of  certainty  and 
comprehensiveness  are  effectually  and  beautifully  preserved. 
It  is  with  the  law  as  with  language,  the  past  gives  the 
plastic  form',  the  present  supphus  the  new  material.  We 
can  discern  no  epoch  at  which  an  abrupt  change  has  been 
made,  but  we  know  that  a  continued  modification  is  going 
on,  amounting,  when  we  compare  distant  periods  of  time,  to 
a  revolution. 

§  55.  Having  tlius  in  this  introductory  chapter  given  an 
outline  of  the  divisions  of  the  subject  and  the  matters  to  be 
considered,  I  shall  now  proceed  to  treat  more  at  large  upon 


ESTTRODUCTION.  27 

the  topics  thus  suggested.  In  the  course  of  this  examina- 
tion, following  the  classification  already  made,  the  work 
will  be  divided  into  three  parts. 

Part  First  will  treat  of  the  municipal  law  in  its  modal 
character,  the  judicial  machinery  through  which  it  has  been 
developed,  and  the  manner  and  form  of  this  evolution. 

Part  Second  will  contain  a  historical  sketch  of  the 
national  sources  of  English  and  American  law  ;  and 

Pa^t  Third  will  be  devoted  to  a  consideration  of  the 
subject  matter  of  our  jurisprudence,  and  will  endeavor  to 
exliibit  the  general  principles,  rather  than  to  explain  in 
detail  the  separate  rules. 


PART   I. 


THE  LAW  IN  ITS  MODAL  CHARACTER :    ITS  MEANS,  METHODS, 
AND  FORMS  OF  DEVELOPMENT. 


CHAPTEK  I. 

STATUTES. 

§  56.  There  are  certain  forms,  methods,  and  instru- 
ments which  are  common  to  the  legislation  of  all  those 
nations  in  which  society  has  made  any  considerable  prog- 
ress in  civilization,  with  organized  governments,  definite 
policy,  and  a  coherent  system  of  municipal  regulations.  Of 
course  we  do  not  refer  to  those  countries  where  justice  is 
administered  according  to  the  mere  caprice  of  any  ofiicial, 
in  which  the  law,  depending  upon  the  uncontrolled  will  of  a 
single  despot,  or  of  a  tumultuous  democracy,  is  ever  fluc- 
tuating and  contradictory.  Our  attention  will  be  directed, 
among  the  ancients,  principally  to  Rome,  and  among  the 
moderns  will  be  confined  to  those  countries  of  Europe 
which,  succeeding  the  crumbling  "Western  Empire,  have 
been  marked  by  a  striking  similarity  in  their  civilization, 
in  their  forms  of  legal  development,  and  in  the  point  to 
which  they  have  arrived  in  social  progress.  In  all  these 
countries,  different  as  they  are  in  many  external  features, 
with  peoples  speaking  various  languages  and  wedded  tc 
various  customs,  we  shall  discover  common  princi]:le8  of 


GENERAL    FOKMS    OF   THE   LAW.  29 

civilization  continually  at  work,  sometimes  one,  sometimes 
the  other  preponderating.  In  all,  the  rulers  and  the  people, 
whatever  may  be  the  local  form  of  government  or  maxims 
of  state  policy,  are  alike  subject  to  the  power  of  a  control- 
ling law.  In  none  shall  we  find  a  despotic  monarch,  a  rep- 
resentative legislature^  or  a  turbulent  democracy  who  do  not 
profess  to  follow  the  leadings,  and  carry  out  the  principles 
of  the  general  laws  of  the  nation.  There  may  have  been 
temporary  interruptions  to  this  subjection  of  the  ruling 
class  to  the  demands  of  an  admitted  higher  power ;  there 
may  have  been  tyrants  who  occasionally  have  asserted  the 
absolute  supremacy  of  their  own  unbridled  will,  but  these 
instances  only  serve  to  bring  out  the  general  rule  in  stronger 
relief. 

§  57.  While  this  universal  obedience  to  general  legal 
principles  is  evident,  pervading  all  the  nations  of  modern 
Europe  which  we  have  embraced  within  our  survey,  we 
shall  at  the  same  time  perceive  in  all  of  those  separate  com- 
munities, that  the  original  germs,  the  partly  grown  or  fully 
expanded  results  have  been  developed,  nurtured,  and  at- 
tained through  the  working  of  the  same  elements,  by  means 
of  the  same  political  machinery.  The  resemblance  may 
sometimes  be  hidden  under  seeming  outward  differences, 
but  a  closer  scrutiny  will  detect  the  general  identity. 

§  58.  I  would  by  no  means  assert  that,  in  the  various 
countries  of  Europe,  and  in  the  States  of  America,  these 
elements  and  means  have  all  done  an  equal  work,  and  pro- 
duced a  correspondingly  similar  result.  In  one  nation  the 
principle  of  absolutism  is  in  the  ascendant ;  the  popular 
will  is  little  consulted ;  representative  assemblies  are  almost 
unknown,  or  are  restricted  to  unimportant  duties  ;  in  it  the 
element  of  a  free  liberal  judiciary,  working  out  the  national 
legislation  in  an  open  expansive  form,  has  less  scope,  and 
the  jurisprudence,  emanating  to  a  great  extent  from  the 
regulated  will  of  a  permanent  class  of  rulers,  assumes  rather 
the  form  of  statutes.     In  another  state,  the  germs  of  indi- 


30  STATUTES. 

vidual  liberty,  planted  deep  in  the  rich  soil  of  the  people's 
etlmic  life,  bursting  through  all  the  opposition  of  counter 
forces,  have  been  brought  out  as  powers  in  the  common- 
wealth, not  only  through  the  political  machinery  of  a  lim- 
ited monarchy  and  representative  legislatures,  but  even 
more  still  in  enlightened  and  liberal  courts,  through  whose 
action  the  jurisprudence  has  assumed  rather  the  form  of  an 
expanding,  progressive,  self-contained,  unwritten  law. 

§  59.  "Whichever  form  may  predominate,  the  municipal 
legislation  of  all  countries,  which,  with  a  true  national  life 
animating  them,  have  entered  upon  the  onward  march  of  a 
real  civilization,  divides  itself  into  the  two  grand  classes  of 
statute,  and  unwritten  law,  or  the  law  of  definite  enact- 
ment, and  the  law  of  virtual  judicial  decision.  If  we  reflect 
upon  the  familiar  rules  which  control  our  civil  conduct,  we 
cannot  perceive  any  one  which  does  not  fall  within  oue  of 
these  divisions.  Our  form  of  municipal  society  is  so  sim- 
ilar to  that  of  England,  that  we  can  easily  admit  the  same 
to  be  true  of  that  country.  If  we  go  back  to  Home,  the 
great  mother  of  law,  we  shall  still  find  the  statute  on  the 
one  hand,  and  the  judicial  decision,  or  its  equivalent,  on  the 
other,  to  comprehend  all  the  forms  and  means  of  legal  de- 
velopment. 

§  60.  Statutes  are  brought  forth  into  being  by  difierent 
agencies,  and  assume  various  forms.  Both  their  immediate 
sources,  and  the  resulting  foims  may  be  generally  classified 
into  a  few  comprehensive  divisions  which  are  common  to 
many  nations,  and  to  difierent  stages  of  civilization. 

§  61.  The  sources  from  which  the  statute  has  originated, 
or  been  enacted  into  its  condition  of  binding  municii^l  law, 
in  the  countries  and  during  the  periods  of  time  which  we 
have  before  mentioned  as  included  in  our  review,  are 

1.  General  assemblies  of  the  citizens  of  a  state,  or  par- 
tial convocations  of  a  particular  portion  or  class  of  indi- 
viduals, who  meet  to  propose  and  adopt  laws  of  universal 
or  limited  sanction. 


SOURCES   OF   STATUTES.  31 

2.  Representative  and  deliberative  assemblies,  either 
elective  or  hereditary,  convened  on  special  occasions,  or 
holding  stated  and  regular  sessions  as  a  part  of  the  political 
machinery  of  the  commonwealth  ;  and 

3.  The  kings,  emperoi's,  or  other  executive  heads  of  the 
government,  who,  by  the  constitution  of  the  municipal  so- 
ciety, have  the  authority  to  promulgate  laws. 

I  will  illustrate  these  classes  by  a  few  instances  taken 
from  the  legislation  of  ancient  and  modern  times. 

§  62.  At  the  present  day,  at  least  in  Europe  and  Amer- 
ica, the  first  of  tiiese  methods  of  calling  the  law  into  being, 
is  almost  entirely  disused.  Neither  in  England  nor  in 
America,  with  perhaps  a  single  exception,  is  there  any  pro- 
vision made  by  the  organic  law  for  the  people  of  the  whole 
country,  or  of  any  portion  or  class  of  it,  to  meet  together  in 
their  primary  capacities,  and  pass  statutes  binding  upon 
the  v»']iole  nation  or  upon  any  number  of  its  citizens.  The 
inhabitants  of  towns  and  cities  no  longer  assemble  at  the 
sound  of  the  great  bell,  and,  in  tumultuous  gatherings,  order 
the  affairs  of  the  community.  Public  assemblies  there  are, 
which  deliberate  and  decide  upon  measures  of  state  or  local 
policy,  and  which,  indeed,  often  exert  a  great  and  some- 
times overwhelming  influence  upon  the  final  settlement  of 
debated  subjects,  but  these  are  only  methods  of  bringing 
the  force  of  public  opinion  to  bear  upon  the  constituted 
authorities;  they  can  recommend,  but  cannot  legislate.  The 
only  approximation  to  these  primary  legislative  assemblies 
in  this  country  is  found  in  the  provision  which  exists  in 
some  States  of  America,  for  the  inhabitants  of  each  town- 
ship to  meet  and  regulate  the  internal  affairs  of  their  small 
communities.  But  the  results  of  these  town  meetings  can- 
not truly  be  called  laws  or  statutes.  Upon  one  special 
subject,  however,  the  people  of  the  American  States  have 
retained  the  power  of  legislation  in  their  own  hands.  They 
are  often  called  to  decide  in  their  collective  capacity  upon 
the   acceptance  or  rejection  of  the   written  constitutions 


32  STATUTES. 

wliich  are  submitted  to  them  by  duly  organized  conventiona 
for  their  approval.  As  these  instruments  contain  the  or- 
ganic law  of  a  commonwealth,  upon  which  all  the  forms  of 
government  are  built  up,  the  people  have  been  jealous  of  a 
delegated  power  in  imposing  upon  them  such  an  all  import- 
ant enactment,  and  have  claimed  the  right  to  decide  for 
themselves  the  momentous  question.  In  this  they  have 
retained  much  of  the  form,  and  all  of  the  substance  of  the 
Koman  people's  vote  upon  the  proposed  decrees  of  the 
Senate. 

§  63.  The  practice  of  committing  the  functions  of  legisla- 
tion to  general  conventions  of  the  citizens  was  much  in 
vogue  as  a  method  of  state  policy  in  ancient  times,  when 
civilization  assumed  more  the  form  of  communities  aggre- 
gated in  cities,  than  thinly  distributed  over  a  wide  territory. 
M.  Guizot  pronounces  this  to  be  the  type  of  Roman  civil- 
ization. The  same  was  true  of  Greece  and  of  many  other 
nations  which,  before  the  Middle  Ages,  attained  to  any 
degree  of  culture.  It  was  the  city  which  contained  the 
ruling  populace,  and  gave  laws  to  the  rest  of  the  country. 
It  was  possible  in  such  a  .■>ociety  for  the  whole  body  of  cit- 
izens to  meet  in  regularly  constituted  assemblies,  and  with 
some  concert  of  action  p.'.-iiounce  upon  public  measures. 
Ab  the  city  diminished  in  power,  and  finally  lost  its  su- 
premacy, by  the  spread  of  population  through  the  rural 
regions  and  villages,  and  as  this  population  arose  in  dignity 
and  began  to  assume  its  proper  position,  the  convocation  of 
the  mass  of  the  people  to  deliberate  and  enact  or  reject 
laws  became  impossible. 

§  64.  By  the  Roman  constitution,  trom  the  earliest  pe- 
riods of  authentic  history  down  to  the  establishment  of  the 
imperial  power,  the  voice  of  the  people  was  a  potent  instru- 
ment in  enacting  the  statutory  law  of  the  commonwealth. 
The  various  meetings  of  the  several  orders  of  the  inhab- 
itants, convened  in  their  class  or  general  asseml)lies,  the 
comitia  curiata  of  the  burghers,  the  comitia  tHhida  of  the 


REPRESENTATIVE   ASSEMBLIES.  33 

commons  or  plebeians,  and  the  comitia  centuriata  or  assem- 
blages of  the  centuries,  had  each  the  power  and  authority 
to  originate,  affirm,  or  reject  laws  which  should  be  binding 
upon  the  whole  state,  or  upon  the  particular  portion  repre- 
sented by  the  convention.  The  acts  of  the  assemblies  of 
the  curies  and  of  the  centuries  obtained  the  technical  name 
of  Leges,  those  of  the  commons  were  known  as  Plebiscites. 
They  formed  a  part  of  the  written  law  of  Rome,  analogous 
to  our  statutes,  and  were  supreme  over  the  courts  and  mag- 
istrates. 

At  the  destruction  of  the  Western  Empire,  Rome  left 
the  city  as  a  type  of  power  scattered  through  her  provinces, 
and  although  the  influence  of  these  communities  was  much 
diminished,  and,  indeed,  in  a  great  measure  destroyed  bj 
the  rising  feudal  civilization,  there  still  remained  some  im- 
portant municipalities  which  preserved  the  old  form  of  the 
direct  rule  of  the  burghers  down  to  a  late  period  of  Eu- 
ropean history. 

§  65.  The  second  class  of  agencies  for  producing  stat- 
utes, the  representative  assemblies,  either  elective  or  hered- 
itary, is  common  to  all  stages  of  civilization,  as  well  to  the 
mde  barbarian  as  to  the  most  cultivated  state  of  modern 
Europe  and  America.  In  some  times  and  countries,  it  has 
appeared  in  connection  both  with  the  democratic  and  kingly 
elements  of  power ;  in  others  with  the  kingly  authority 
alone  ;  and  in  still  others,  it  is  the  only  source  of  the  writ- 
ten law. 

§  QQ.  In  Rome  this  body  was  the  Senate,  and,  for 
several  centuries  during  the  period  of  its  integrity,  consisted 
of  three  hundred  delegates  elected  from  the  gentes  or 
houses,  into  which  the  three  original  tribes  of  Burghers 
were  divided,  each  house  sending  one  representative  from 
among  its  heads  of  families.  It  must  not  be  supposed  that 
the  functions  of  the  Roman  Senate  were  exactly  analogous 
to  those  of  the  English  Parliament  or  American  Legisla- 
tures.    Its  decrees  were  not  absolute  and  final,  requiring  no 


34  STATUTES. 

additional  sanction,  altliougli  this  illustrious  body  was,  for  a 
long  period  of  time,  the  grand  source  of  statutory  legislation. 
In  it  propositions  were  made,  discussed,  shaped  and  passed 
into  decrees,  but  tliey  still  needed,  during  the  earlier  j^eriods 
of  the  elective  kings,  and  afterward,  during  the  republic, 
th3  final  ratification  of  the  assemblies  of  the  curies  and  com- 
mons, to  enact  them  into  Leges,  or  laws  in  the  full  accep- 
tation of  the  term. 

§  67.  Without  adverting  to  the  many  forms  of  national 
legislatures  which  have  existed,  and  still  continue  to  exist 
in  Europe,  although  the  subject  would  be  full  of  interest, 
but  beyond  the  scope  of  a  merely  elementary  work,  and 
reserving  to  a  subsequent  portion  of  this  book  the  descrip- 
tion of  the  manner  in  which,  in  all  feudal  countries,  the 
king  gradually  drew  around  him  a  body  of  hereditary  or 
representative  advisers,  it  is  sufficient  to  allude  to  the 
EngHsh  Parliament  as  at  present  established,  as  a  type  of 
the  state  central  or  imperial  legislature,  whose  acts  have 
supreme  authority,  and  whose  functions  therefore  transcend 
in  importance  those  of  any  other  dejjartment  of  the  govern- 
ment. 

§  68.  The  Koman  Senate,  and  many  other  elective  or 
.  hereditary  national  assemblies,  consisted  of  one  body  meet- 
ing, deliberating  and  voting  together.  The  British  Parlia- 
ment and  the  legislatures  of  this  country,  fashioned  after 
its  model,  are  distinguished  by  being  separated  into  two 
independent  co-equal  houses,  whose  consent  must  be  ob- 
tained for  the  purposes  of  ordinary  legislation.  Wherever 
this  dual  character  appears,  we  shall  find  that  one  house  is 
intended  as  the  correlative  of  the  other ;  that  one  is  moro 
conservative,  the  other  more  popular  ;  that  one  is  designed 
in  a  measure  to  repi'esent  the  general  interests  of  the  em- 
pire, the  other,  the  more  particular  interests  of  local  constit- 
uencies. These  aims  and  purposes  are  accomplished  in 
various  ways.  In  England,  the  House  of  Lords  is  composed 
mostly  of  hereditary  members,  although  there  is  an  element 


BKITI8H    AND   AMERICAN   LEGISLATURES.  35 

of  appointed  bishops,  who  hold  their  offices  for  life.  In 
America  the  same  idea  of  permanency  and  freedom  from 
the  passing  influence  of  popular  pressure  is  embodied  in  the 
method  of  appointment  of  the  United  States  Senators,  for 
terms  of  a  considerable  length,  by  the  State  Legislatures, 
and  among  the  individual  commonwealths,  in  the  method  of 
electing  the  State  Senators  from  larger  constituencies,  and 
for  longer  times  than  belong  to  the  members  of  the  lower 
houses.  In  Great  Britain  tlie  delegates  to  the  coordinat^e 
body,  or  the  House  of  Commons,  are  strictly  elective  from 
local  districts  or  boj'oughs.  In  America  the  same  method  is 
pui'sued  in  the  choice  of  representatives  to  the  lower  house 
of  the  Federal  Congress,  and  to  the  popular  branches  of  the 
State  Legislatures.  It  is  plain  then,  that,  due  allowance 
being  made  for  the  great  differences  in  our  social  organiza- 
tion, in  our  class  divisions,  and  in  our  adherence  to  the  past 
with  a  steady  conservatism,  the  legislative  assemblies  of 
our  own  country  are  closely  patterned  after  the  model  fur- 
nished them  by  the  British  Parliament.  The  American 
senator  has  not  the  inherited  elevation  in  the  social  order 
of  the  English  Noble,  but  in  his  capacity  of  law  maker,  he 
represents  the  same  interests,  and  performs  the  same  part 
in  the  governmental  economy. 

§  69.  While  there  are  these  resemblances  of  form,  there 
are  striking  contrasts  in  the  functions  of  the  British  and 
American  national  legislatures.  Our  Federal  Congress  is  the 
creature  of  a  power  beyond  and  above  it.  To  that  power 
it  must  refer  for  all  its  authority.  The  written  constitution 
called  the  body  into  life  and  being  ;  prescribed  the  division 
into  two  houses,  the  method  of  choosing  members,  the  rules 
by  which  their  number  shall  be  determined,  and  the  sub- 
jects of  legislation  which  are  within  their  province.  So 
minute,  definite,  and  imperative  are  these  provisions  of  the 
organic  law,  that  if  the  national  lesrislature  transgress  the 
limits  thus  mapped  out,  and  the  powers  specifically  con- 
ferred upon  it,  or  which  may  be  deemed  reasonably,  and  by 


36  STATUTES. 

legitimate  inference,  contained  in  the  actual  specifications, 
such  acts  are  absolutely  void ;  having  the  form,  they  are 
yet  not  law,  and  any  citizen  will  be  justified  in  disregarding 
them.  And  this  is  true,  although  the  powers  which  the 
Congress  has  assumed  may  not  have  been  expressly  nega- 
tived and  forbidden  by  the  constitution.  Furthermore,  the 
Federal  Legislature  has  no  power  in  itself  to  alter  in  the 
slightest  particular  this  fundamental  law  which  thus  under- 
lies it,  and  which  must  give  a  sanction  to  all  of  its  proceed- 
ings. So  far  as  any  attempt  can  go  which  begins  and  ends 
in  that  body  itself,  the  constitution  is  to  tliem  unchange- 
able. The  assumed  source  of  all  governmental  authority, 
which  at  first  adopted  the  constitution,  the  people,  must  be 
called  in  to  remodel  their  work. 

§  70.  In  like  manner,  the  State  Legislatures  are  organ- 
ized, determined,  and,  in  a  great  measure,  governed  by  the 
several  written  State  constitutions.  There  is,  however,  a 
great  and  most  important  distinction  between  the  two,  the 
Federal  Congress  and  the  State  Legislatures,  in  respect  to 
the  powers  which  they  may  each  assume.  The  local  assem- 
blies may  extend  their  labors  over  a  wide  field  ;  they  must 
follow  the  plain  directions  of  their  constitutions,  and  ob- 
serve the  limitations  of  the  national  Constitution  ;  they 
cannot  do  what  they  are  directly  forbidden  to  do,  but  be- 
yond these  restrictions  their  power  is  complete.  Thus,  in 
comparing  the  statute  books  of  the  State  and  General  gov- 
ernments, we  shall  find  that  one  is  confined  to  a  few  sub- 
jects ;  the  foreign  relations  of  the  United  States,  the  rev- 
enue, the  regulations  of  commerce,  the  army  and  navy,  and 
the  management  of  wars,  the  postal  service,  the  coining  of 
money,  the  government  of  territories,  a  few  special  crimes 
against  the  government,  and  such  like  topics,  while  the 
other  emljraces  all  the  questions  which  can  afi'ect  the  inter- 
ests ot  the  citizen ;  the  definition  and  punishment  of  all 
crimes,  the  regulation  of  all  kinds  of  property,  the  indivi- 
dual rights  of  all  persons,  the  means  of  enforcing  all  claims 


PARLIAMENT   AND   CONGRESS.  37 

aud  duties,  and  all  the  internal  arrangement  and  classifica 
tion  of  the  body  politic. 

§  71.  On  the  other  hand  the  British  Parliament  is  bound 
by  no  unalterable,  precise,  written  constitution  ;  it  com- 
bines the  powers  of  the  Federal  Congress  and  the  State 
Legislatures ;  it  legislates  at  once  in  regard  to  the  most 
complicated  alfairs  affecting  the  empire,  both  in  her  foreign 
and  domestic  relations,  and  to  the  insignificant  local  mat- 
ters of  a  county  or  borough  ;  it  can  govern  the  millions  of 
India,  and  superintend  the  building  of  a  bridge ;  it  may 
organize  an  army  and  locate  a  railway ;  it  has  indeed  been 
called  omnipotent.  To  call  the  British  Parliament  omnipo- 
tent, is,  however,  only  a  figure  of  speech  by  which  to  illus- 
trate its  immense  and  all  embracing  authority.  There  is  to 
them  a  constitution,  of  which  they  are  not  the  creatures, 
like  the  United  States  Congress,  but  of  which  they  are  an 
integral  part,  as  is  the  king,  as  are  the  nobles  and  commons, 
the  church  and  laity,  the  judiciary,  and  still  more,  the  gen- 
eral and  inviolable  principles  which  underlie  and  infuse  the 
whole.  This  constitution,  the  growth  and  product  of  ages, 
the  accumulation  of  the  experiences  of  centuries,  the  result 
of  generations  of  fierce  conflict  between  kings  and  nobles, 
between  both  and  commons,  between  power  and  liberty,  is 
as  really  binding  upon  the  imperial  legislature,  as  are  the 
written  regulations  of  our  convention  of  1787  upon  the 
Federal  Congress. 

§  72,  Yet  with  all  this  controlling  force  of  the  British 
constitution,  it  is  true  that  Parliament  may,  M'ithin  certain 
limits,  alter  it.  They  may  not,  indeed,  by  any  act  of 'the 
legislative  will,  abolish  the  kingly  oflSce,  or  the  House  of 
Lords ;  but  they  may,  and  have  ejffected  changes  the  most 
momentous  in  the  fundamental  law,  without  calling  in  the 
aid  of  the  people  in  a  legislative  capacity.  I  do  not  now 
refer  to  the  proceedings  of  Parliament  during  the  Great 
Rebellioh,  M^hen  the  monarchy  was  formally  abolished,  nor 
yet  to  the  Revolution  which  displaced  James  II,  and  raised 


38  STATUTES. 

William  and  Mary  to  the  throne  ;  but  to  its  acts  in  the  reg- 
ular and  constant  exercise  of  its  legitimate  functions.  The 
Reform  Bill,  by  which  Parliament  reconstructed  the  repre- 
sentation and  changed  the  methods  of  electing  the  Com- 
mons, and  took  a  long  step  toward  universal  suffrage,  was 
so  marked  and  fruitful  an  alteration  in  the  British  Constitu- 
tion, that  one  of  England's  greatest  statesmen  pronounced 
it  a  bloodless  revolution. 

§  73.  Another  feature,  common  to  the  British  and  Amer- 
ican legislatures,  should  be  carefully  noticed.  In  both,  a 
proposed  measure,  which  has  been  adopted  by  the  two 
representative  bodies,  does  not  pass  into  the  condition  of  a 
law,  until  it  receives  the  assent  of  the  executive.  The  Eng- 
lish king  and  the  American  president  and  governors  have  a 
veto  upon  the  acts  of  parliament  and  the  legislatures.  In 
exercising  this  prerogative,  it  is  not  supposed  that  the  chief 
magistrate,  be  he  king  or  president,  possesses  any  direct  per- 
sonal power  of  enacting  laws,  independent  of  the  aid  and 
cooperation  of  the  legislatm-e  ;  he  is  in  theory  a  coordinate 
branch,  his  approval  being  as  necessary  as  that  of  the 
others.  Thus  the  description  of  the  British  Parliament  is 
the  King,  Lords  and  Commons.  The  executive  has,  in  the 
formal  passage  of  a  statute,  only  the  same  authority  in 
degree  and  kind,  which  belongs  collectively  to  the  lords  or 
to  the  commons,  to  the  senate  or  to  the  lower  house.  In 
America  the  theory  in  this  mutual  balance  is,  that  the 
president  represents  the  people  as  a  whole  in  their  imperial 
capacity ;  that  the  senate  represents  them  as  collected  into 
local  commonwealths ;  and  the  members  of  the  lower  house 
represent  them  as  divided  into  small  and  single  constituen- 
cies. The  action  of  the  president  then,  in  refusing  his  assent 
to  a  bill,  is  only  that  of  the  senate  in  rejecting  a  measure 
proposed  by  the  house.  There  seems  to  be  a  prevailing 
belief  that  the  president  is  only  empowered  to  object  to  a 
bill  when  he  deems  it  to  be  in  violation  of  some  provisions 
of  the  constitution.     This  is  a  mistake,  for  he  may  as  well 


CONSTITUTION AJL   CONVENTIONS.  39 

be  guided  by  considerations  of  mere  expediency  in  his  ac- 
tion, as  may  any  senator  or  i-epresentative.  In  practice, 
the  United  States  president  seldom  resorts  to  the  veto,  the 
British  crown  never. 

§  74.  One  other  description  of  legislative  assemblies  re- 
mains to  be  mentioned,  those  which  are  convened  on  special 
occasions,  for  temporary  and  special  purposes.  In  America 
they  have  become  a  part  of  the  stated  policy,  authorized  by 
law,  and  possessing  powers  which  are  not  granted  to  the 
regularly  constituted  legislatures.  In  other  countries  such 
uses  and  purposes  are  unknown,  although  this  form  of  the 
law  making  power  has  been  resorted  to  in  periods  of  revo- 
lution, as  a  part  of  the  machinery  by  which  society,  when 
passing  through  crises  of  disorganization,  is  made  to  assume 
a  new  form  and  a  new  political  basis.  With  us  they  are 
not  revolutionary  and  exceptional,  but  legal  and  not  unfre- 
quent.  They  are  summoned  in  times  of  profound  peace, 
accomplish  their  ends  and  are.  dissolved,  and  the  people 
yield  to  them  implicit  faith  and  obedience.  In  the  United 
States  they  have  received  the  technical  name  of  Conven- 
tions, and  to  them  has  been  committed  from  time  to  time 
the  high  duty  of  forming  or  altering  the  organic  law  of  the 
nation  and  of  the  several  States.  The  features  which  dis- 
tinguish them  from  legislatuj-es  are,  that  they  are  called 
together  by  special  provisions  of  statutes  or  of  the  constitu- 
tions ;  that  they  consist  of  but  one  body  or  house ;  that 
they  have  really  a  power  supreme  over  tlie  ordinary  appli- 
ances of  government,  subject  only  in  most  instances  to  the 
ratification  of  the  people  ;  that  they  are  thus  distinct  from, 
and  above,  the  executive,  legislature,  and  judiciary,  for  they 
have  the  power  to  make  and  unmake  them ;  that  their  func- 
tions have  in  general  been  confined  to  a  single  class  of  sub- 
jects, and  that,  these  being  exercised,  they  are  ended  by 
the  limitation  of  their  own  powers. 

§  75.'  The  third  class  of  agencies  for  the  creation  of  the 
statutory  law  includes  those  supreme  rulers,  by  whatever 


40  STATUTES. 

name  called,  who  have  the  power,  independent  of  the  aid 
or  approval  of  democratic  assemblies  and  representative 
bodies,  of  absolute  legislation,  so  that  their  will,  uttered  and 
embodied  in  the  form  of  general  regulations,  shall  be  a  law 
unto  the  nation.  Coumion  as  is  such  a  power,  yet  in  the 
civilized  states  of  Europe  it  has  in  modern  times  often,  and 
perhaps  generally,  been  combined  with  one  or  both  of  the 
other  sources  of  legislation. 

§  70.  In  Kome  this  supreme  authority  was  lodged  in  the 
person  and  office  of  the  emperor.  During  the  continuance 
of  the  republic,  and  even  under  the  reign  of  the  kings,  the 
Roman  Commonwealth  acknowledged,  as  the  only  legiti- 
mate sources  of  the  statute  law,  the  senate  and  the  assem- 
blies of  the  people.  Upon  the  accession  of  the  emperors, 
some  little  show  of  senatorial  authority  was  for  a  consid- 
erable time  kept  up,  but  this  was  only  a  slight  concession 
to  the  memories  of  the  republic,  and  the  sentiments  of  indi- 
vidual liberty.  The  will  of  the  emperor  was  at  first  vir- 
tually, and  afterward  openly,  the  source  of  the  statute. 
Although  the  law  was  promulgated  under  the  form  of  sen- 
atorial decrees,  these  were  only  the  echoes  of  the  emperor's 
command,  in  substance  and  often  in  form  dictated  by  him. 
But  after  the  lapse  of  time  had  deadened  the  old  feelings, 
blotted  out  in  a  measure  the  old  memories,  and  accustomed 
the  nation  to  the  rule  of  one  irresponsible  head,  even  this 
disguise  was  thrown  off,  and  the  emperor,  without  any 
attempt  at  concealment,  spoke  into  being  the  law  of  the 
land.  Then  was  established  the  maxim.  Quod  Prmoipi 
placet  legis  hahet  mcjorem. 

§  77.  The  emperor  was  at  once  the  chief  executive,  the 
chief  magistrate,  with  the  power  of  hearing  causes  on  ap- 
peal, and  the  fountain  of  all  ordinary  legislation.  His 
decisions  as  magistrate,  and  his  declarations  of  statutory 
law,  were  expressed  in  Constitutions  which  were  either  gen- 
eral or  special ;  general  when  they  were  addressed  to  the 
whole  state,  and  were  binding  upon  all  its  members ;  spe- 


THE   ROMAN   EMPEROR. 


41 


cial  when  tliej  were  only  obligatory  upon  particular  indi- 
viduals, and  in  particular  circumstances.  A  tliird  class 
were,  at  times,  general  or  special,  according  to  the  em- 
peror's order.  The  general  constitutions  were  termed  edicts, 
and  they  alone  in  all  respects  resembled  the  statute  in  their 
general  application  and  character.  They  were  equal  in 
their  efficacy  to  the  acts  of  parliament  or  of  congress.  The 
special  constitutions  were  termed  privileges,  or  private  laws, 
and  had  for  their  object  individuals,  whether  persons  or 
things.  This  privilege  might  confer  a  right  or  benefit,  or  it 
might  impose  a  duty.  Modern  legislative  bodies,  the  Eng- 
lish parliament,  the  American  congress  and  State  legisla- 
tures, frequently  embody  their  will  in  the  form  of  private 
statutes  or  privileges.  As  familiar  instances,  I  will  mention 
those  statutes  allowing  a  person  to  change  his  name,  or 
permitting  an  alien  to  inherit  property,  or  consenting  that 
an  officer  of  the  United  States  may  receive  a  gift  from  a 
foreign  government.  Those  imperial  constitutions  which 
might  be  either  general  or  special  were  divided  into  de- 
crees, mandates,  and  rescripts.  Decrees  were  simply  judg- 
ments or  decisions  of  cases  brought  before  the  emperor  in 
his  capacity  of  chief  judicial  magistrate.  They  had  not 
then  the  character  of  what  I  have  classed  among  the  writ- 
ten jurisprudence,  or  law  of  enactment,  but  rather  belonged 
to  the  division  of  the  law  of  judicial  decision.  Mandates 
were  simply  instructions  addressed  to  public  officials,  to 
guide  them  in  their  various  duties.  Kescripts  were  written 
answers  to  questions  proposed  to  the  enijieror.  If  such 
enquiries  were  made  by  a  public  body  or  community,  the 
emperor's  answer  was  termed  a  Pragmatic  Sanction  ;  if  a 
single  individual,  who  was  a  public  officer,  thus  called  out  a 
formal  reply  touching  his  official  character,  it  was  known 
as  an  Epistle.  Finally,  an  Annotation  or  Subscription  was 
written  to  a  private  person,  in  answer  to  questions  of  a 
merely  private  application.  It  is  clear  that  rescripts  could 
not  in  themselves  have  the  force  of  general  constitutions ; 


42  STATUTES. 

thev  were  addressed  to  single  persons  or  bodies,  and  were 
obligatory  upon  tliein  alone ;  but  it  is  equally  plain  that, 
upon  the  recmTence  of  similar  or  analogous  circumstances 
or  situations,  they  would  form  ready  precedents  for  the 
guidance  of  the  em]ieror  in  the  solution  of  new  questions  as 
they  should  arise,  and  thus  they  came  to  bo  looked  upon  as 
a  part  of  the  universal  law,  binding  upon  the  M'hole  empire. 

§  78.  Thus,  during  the  existence  of  the  empire,  until  it 
was  overthrown  in  the  west,  and  Italy  and  the  provinces  of 
Spain,  Gaul,  and  Britain  were  overrun  and  subjugated  by 
the  barbarians,  the  imperial  will  had  all  the  characteristics 
of  the  source  of  supreme  power.  It  must  not,  however,  be 
supposed,  at  least  so  far  as  concerned  the  general  private 
jurispnidence  of  the  empire,  that  this  will  was  exercised  in 
an  arbitrary  manner.  Many  of  the  emperors  were  savage, 
remorseless  tyrants,  before  whom  all  considerations  of  right 
and  justice  were  swept  away  in  the  gratification  of  their 
passions ;  property  was  seized,  life  was  destroyed,  honor 
was  violated.  But  even  during  the  reigns  of  some  of  the 
most  violent,  bloody  and  lustful  emperors,  the  edicts  and 
other  constitutions  relating  to  the  general  private  law  of 
the  empire  were  strongly  marked  by  wisdom,  equity,  and 
an  enlightened  public  morality.  This  was  partly  due  to  the 
fact  that  the  monarch,  though  theoretically  supreme,  as  is 
the  British  Parliament,  was  in  fact  bound  down,  held  in 
his  place,  and  restrained  by  the  law  as  it  already  existed  ; 
and  partly  to  the  fact  that  although  the  constitutions  issued 
in  the  name  of  the  emperor,  bearing  his  sanction,  they  were 
often,  and  ])erhaps  generally,  the  work  of  illustrious  jurists, 
who  held  official  places  in  the  imperial  household. 

§  79.  It  would  be  a  matter  foreign  to  my  purpose,  and 
involving  too  much  unimportant  detail,  to  trace  the  course 
of  state  p(jlicy  and  the  changes  of  governmental  organiza- 
tion in  Europe,  frum  the  overthrow  of  the  Western  Empire 
down  to  the  present  time,  in  order  to  discover  how  great  a 
fihare  of  ])Owcr  and   influence   kings   and  emperors  have 


THE   BRITISH   KING.  43 

exerted  in  forming  and  enacting  the  municipal  law.  This 
will  be  adverted  to  when  I  shall  speak  in  particular  of  some 
of  the  historical  sources  of  our  jurisprudence,  and  especially 
of  the  feudal  system.  It  is  certain  that,  in  France,  during 
the  vigorous  age  of  feudalism,  the  royal  prerogative  had 
almost  disappeared  ;  that  the  king  had  been  degraded  from 
the  position  of  monarch  to  the  station  of  nominal  head 
among  powerful  and  independent  feudal  barons,  and  that 
with  the  decline  of  the  feudal  constitution,  the  kingly  power 
increased,  and  culminated  with  Louis  XIV.,  who  could  say 
with  as  much  truth  as  point,  "  L'Etat  c'est  Moi."  In  our 
own  day,  the  emperor  of  the  French,  the  emperor  of  Aus- 
tria, and  the  czar  of  the  Eussias,  seem  to  occupy  a  somewhat 
analogous  position  to  the  Roman  Csesar,  although  they  fall 
far  short  of  his  all'  pervading  and  irresistible  power,  as  the 
supreme  will  whence  emanated  the  whole  public  and  gov- 
ernmental forces  of  the  nation, 

§  80.  It  can  hardly  be  said  that  any  function  of  actual 
legislation  is  now  lodged  in  the  crown  of  Great  Britain, 
apart  from  parliament.  From  the  time  of  the  Norman  con- 
queror William,  down  to  the  reign  of  the  first  Charles,  and 
the  revolution  which  overthrew  the  house  of  the  Stuarts, 
exiled  James  II.,  and  placed  William  upon  the  throne,  there 
had  been  a  continual  struggle  between  arbitrary  power, 
unconfined  and  unlimited  by  the  laws  of  the  realm  and  the 
acts  of  parliament  on  the  one  side,  and  a  determination  on 
the  other  to  control  that  authority  and  reduce  it  into  plain 
and  constitutional  bounds.  The  earliest  Norman  kings 
were  in  a  great  measure  absolute.*  The  first  and  principal 
check  upon  their  irresponsible  power  was  Magna  Charta, 
granted  by  King  John.  Yet  this  would  seem  to  have  been 
an  act  of  legislation  on  his  part,  so  far  as  it  established  and 
confirmed  the  law  of  the  kingdom,  although  it  has  been 
maintained  that  the  great  charter  of  English  liberties  con- 

*  See  Spence,  Equity  Juris.  Vol.  I,  pp.  124,  125. 


44  STATUTES. 

tained  no  new  regulations,  but  only  a  restatement  and 
formal  declaration,  on  the  part  of  the  king,  of  those  which 
had  been  claimed  and  acknowledged  to  be  law  prior  to 
its  date,  but  which  had  been  wrongfully  encroached  upon 
or  entirely  disregarded.  In  the  progress  of  generations, 
through  much  contest  and  fi*equent  vacillations,  the  kingly 
prerogative  was  circumscribed  and  clearly  ascertained, 
until  at  ]iresent  it  is  firmly  settled,  as  a  part  of  the  Eng- 
lish constitution,  that  the  crown  cannot  make,  add  to,  or 
repeal  any  law,  but  that,  acting  under  and  according  to  the 
law,  and  rather  in  his  capacity  of  chief  executive  than  as  a 
legislator,  he  may  by  proclamation  and  for  temporary  pm*- 
poses,  suspend  the  operation  of  public  laws,  or  declare 
when  and  how  they  shall  be  enforced. 

As  illustrations  of  the  royal  proclamations,  I  will  men- 
tion those  issued  in  the  year  1861,  maintaining  a  condition 
of  neutrality  between  the  United  States  and  the  seceding 
Southern  States,  and  forbidding  the  export  from  British 
countries  of  gunpowder  and  other  munitions  of  war.  Othera 
will  be  easily  recalled  by  any  student  of  history. 

§  81.  The  Constitution  of  the  United  States  does  not 
confer  any  separate  power  of  legislation  upon  the  president. 
With  us  Congress  is  the  only  source  of  the  statute  law. 
Still  the  executive  has  a  prerogative  similar  to,  though  not 
so  extensive  as  that  of  the  king  of  Great  Britain,  to  prevent 
and  direct  the  enforcement  of  the  laws  by  proclamation. 
He  may,  during  the  exitftence  of  an  insurrection,  suspend 
the  writ  of  habeas  corpus  ;  he  may  order  a  blockade,  and 
perform  other  quasi  legislative  acts,  which  would  seem, 
however,  to  be  all  confined  to  the  periods  of  actual  war, 
and  not  to  be  permitted  in  the  usual  and  iieaceful  adminis- 
tration of  government. 

§  S2.  From  this  survey  it  will  be  seen  that  a  purely 
democratic  source  of  statutory  law  has  been  found  only 
compatible  with  an  imperfect  civilization,  when  the  people 
were  collected  into  cities,  and  the  intervening  country  and 


FOKMS    OF    STATUTES.  45 

its  inhabitants  were  little  heeded  ;  that  the  exclusive  kingly 
Bource  of  legislation  had  its  greatest  use  and  necessity  in 
those  countries  where  intelligence  was  but  partially  difi'used, 
and  among  peoples  turbulent  and  unruly ;  and  that  the 
supreme  authority  of  legislative  and  representative  bodies 
has  accompanied  a  progressive  culture,  a  condition  of  free- 
dom common  to  large  portions  of  the  citizens,  and  a  wide- 
spread intelligence  and  mental  activity  among  the  people. 

§  83.  Having  thus  mentioned  the  several  sources  from 
which  statutes  emanate,  I  shall  now  describe  in  general 
terms  the  forms  which  they  assume.  In  this  respect  they 
may  be  divided  into  two  classes. 

§  84.  1.  The  first  class  contains  those  statutes  which 
are  enacted  from  time  to  time  as  occasion  demands,  which 
relate  to  a  single  subject  or  class  of  subjects,  and  which  are, 
therefore,  comparatively  short  and  simple.  Of  this  sort  is 
all  the  written  law  of  England,  of  the  Federal  Government 
of  the  United  States,  and  the  greater  portion  of  that  of  the 
individual  States.  When  some  need  is  felt  in  any  depart- 
ment of  the  law,  when  some  new  circumstance  arises  which 
demands  statutory  regulation,  when  some  evil  presses  hard 
upon  the  community,  invoking  correction  and  remedy,  when 
some  new  form  of  crime  is  perceived  which  requires  a  defin- 
itive and  appropriate  punishment,  when  some  power  is  to 
be  added  to  the  ofliceis  of  the  government  or  some  function 
is  to  be  curtailed,  the  legislature  interferes,  and,  by  a  single 
separate  statute,  enacts  the  regulation,  corrects  the  evil, 
defines  the  crime,  or  establishes  the  power.  Thus  the  legis- 
lation of  these  countries  is  made  up  of  almost  innumerable 
distinct  fragments,  embracing  subjects  of  an  infinite  variety, 
some  the  work  of  centuries  past,  and  others  the  creation  of 
the  present  day.  Hundreds,  and  perhaps  thousands,  of  Eng- 
lish statutes  remain  to  this  time  unrepealed  and  yet  inop- 
erative, because  the  occasions  which  called  them  forth  have 
passed  away.  And  yet  some  of  the  most  important  statutes 
of  the  kingdom  are  of  a  very,  ancient  date.     Among  these  T 


46  STATUTES. 

vrill  mention  that  defining  treason,  passed  in  the  reign  of 
Edward  III. 

§  85.  Certain  classes  of  legislative  acts,  once  perfected, 
remain  for  years  and  generations  unaltered,  nntil  society 
has  so  far  advanced  that  additions  and  modifications  are 
demanded  to  meet  the  slow  requirements  of  the  changing 
times.  Such  in  the  United  States  are  the  acts  organizing 
tlie  judiciary,  and  defining  the  jurisdiction  and  regulating 
proceedings  in  courts  ;  the  acts  concerning  navigation  ;  the 
acts  establishing  ports,  light  houses,  and  post  roads ;  the 
acts  defining  the  duties  of  executive  officers ;  the  acts  pro- 
viding for  the  punishment  of  oftences  against  the  United 
States.  Others  are  renewed  yearlj'-,  or  are  frequently  al- 
tered and  repealed.  Among  the  yearly  statutes,  the  most 
important  are  the  supply  hills,  by  which  money  is  furnished 
for  the  annual  expenses  of  the  government,  for  the  army, 
the  navy,  and  the  civil  departments.  One  peculiarity  of 
the  English  constitution,  which  has  always  been  esteemed 
as  one  of  the  strongest  checks  upon  arbitrary  power,  and 
which  the  people  have  often  used  with  the  greatest  success 
in  their  contests  with  the  king,  is  the  provision  that  all 
supply  bills  must  originate  in  the  House  of  Commons,  which 
body,  directly  chosen  from  and  respojisible  to  the  people, 
has  the  absolute  control  of  the  expenditure  of  the  govern- 
ment, and  the  power  to  clog  and  even  defeat  any  obnoxious 
measures  of  the  executive  by  refusing  to  grant  the  needful 
money.  Our  Constitution  has  retained  the  same  safeguard 
in  the  keeping  of  the  lower  house  of  Congress,  and,  with  an 
extreme  jealousy  wliich  distrusts  not  only  the  president 
and  the  representative,  but  even  the  people  themselves, 
has  forbidden  any  supplies  to  be  granted  for  the  army  or 
navy  for  a  period  longer  than  two  years. 

§  86.  It  is  easy  to  see  that  great  difficulties  must  attend 
this  multiplication  of  single  and  separate  statutes  put  forth 
from  time  to  time  to  meet  a  special  occasion.  The  gradual 
increase  in  their  number  finally  becomes  so  enormous  that 


GENERAL   CODES.  47 

no  one  person  can  pretend  to  be  acquainted  witli  any  con- 
siderable portion  of  them.  The  written  law  of  the  com- 
monwealth is  thus  made  to  be  a  closed  book  not  only  to 
the  people,  but  to  the  learned  jurists.  In  England  the 
number  of  statutes  actually  in  force  is  immense.  The 
accumulation  of  the  acts  of  the  United  States  Congress  is 
of  course  far  less,  yet  it  is  already  a  heavy  task  to  number 
and  collate  them.  The  remedy  for  this  practical  evil  leads 
me  to  the  other  division. 

§  87.  2.  The  second  division  embraces  those  statutes 
which  are  digested  into  the  form  of  general  national  codes. 

A  complete  national  code  would  contain  the  whole  mu- 
nicipal law  of  the  commonwealth,  reduced  to  a  statutory 
form,  and  arranged  after  some  definite  and  comprehensive 
plan,  and  would  at  once  take  the  place  of  the  mass  of 
separate  statutes  and  judicial  decisions  in  which  that  law 
had  been  previously  contained.  "Were  such  a  compilation 
ideally  perfect,  it  would  dispense  with  most  subsequent 
legislation,  as  well  of  parliaments  as  of  courts.  It  would 
also  be  a  line  of  division  between  the  old  and  the  new,  and 
would  cut  off  all  communication  with  the  past,  as  affording 
explanations  of  the  legal  rules  of  the  present  day.  ]^othing 
would  be  left  for  the  tribunals  but  to  apply  the  plain  and 
dii'ect  provisions  of  this  universal  statute  to  the  cases  which 
should  arise  ;  there  would  be  no  room  for  extending  princi- 
ples by  analogy,  no  adding  on  new  rules,  no  lopping  off  old 
and  irregular  growths,  because  the  legal  principles  would 
be  no  longer  free  and  elastic,  existing  as  a  power  and  not 
as  a  form,  but  they  would  be  all  stated  and  sharply  defined 
in  the  precise,  dogmatic  letter  of  the  written  instrument. 
Such  codes  have  been  attempted,  but  the  ideal  has  never 
been  fully  wrought  out  in  the  actual ;  former  legislation 
must  be  referred  to  for  explanations  of  the  written  rule ; 
courts  /must  expound,  limit,  add  to,  and  make  law,  as  long  as 
language  is  an  imperfect  means  of  expressing  thought,  and 
as  long  as  societies  continue  to  progress  in  civilization. 


48  STATUTES. 

§  88.  An  entirely  new  code  of  municipal  law,  composed 
of  original  regulations  devised  and  put  in  force  at  one  time 
as  the  product  or  invention  of  a  single  legislator  or  govern- 
raent,  may  well  be  considered  impossible.  The  analogies 
of  history  are  all  opposed  to  such  a  creation.  Whenever  a 
national  code  has  been  constructed,  it  has  been  formed  by 
compiling,  arranging,  condensing,  and  reducing  to  a  com- 
pact and  symmetrical  structure  the  preexisting  system  of 
legal  rules,  whether  they  were  contained  in  tradition,  judi- 
cial decisions,  the  writings  of  jurists,  or  statutes.  The  alter- 
ations have  been  more  in  form  than  in  substance,  and  have 
consisted  in  great  measure  in  the  choice  or  rejection  of  par- 
ticular portions  from  the  whole  mass,  and  in  digesting  the 
result  into  a  condition  of  precision  and  unity. 

There  is  still  a  dispute  between  the  partizans  of  a  gen- 
eral codification  and  those  of  the  progressive,  unwritten 
foi'ui  of  the  law  of  judicial  decision,  as  to  the  respective 
merits  of  the  two  systems  ;  but  without  now  entering  into 
the  discussion  of  the  vexed  question,  I  will  state  some  of  the 
principal,  and  to  us  most  interesting  examples  of  national 
codes. 

§  89.  The  earliest  which  I  shall  mention  was  the  Roman 
Law  of  the  Twelve  Tables.  As  I  have  already  stated,  the 
ordinary  means  of  legislation  in  the  earliest  periods  of  the 
Roman  commonwealth  was  by  senate  decrees  and  the  de- 
cisions of  the  popular  assemblies  ;  and  there  also  existed,  in 
all  probability,  parallel  with  these  statutes,  filling  up  their 
gaps  and  supplying  their  omissions,  a  body  of  rude,  custom- 
ary, or  common  laws.  In  the  year  b.  c.  452,  a  commission 
is  reported  to  have  been  sent  by  the  senate  to  Greece,  to 
study  their  institutions  and  jurispnidenee,  and  to  collect 
such  information  and  material  as  would  aid  in  compiKng  a 
digest  for  the  Roman  state.  Upon  the  return  of  this  com- 
mission, ten  burghers  were  appointed  under  the  name  of 
decemvirs,  who  reduced  the  whole  law  to  a  compact  form. 
The  results  of  their  labors  appeared  in  the  year  b.  c.  451, 


THE   KOMAN    TWELVE   TABLES.  49 

divided  into  ten  tables,  and  in  the  following  year  two  other 
portions  were  added,  and  thus  the  famous  code  of  the 
Twelve  Tables  was  completed.  This  compilation  thereafter 
became  the  "  Municipal  Law  "  of  Rome,  and  was  the  basis 
of  all  subsequent  legislation,  never  having  been  formally 
repealed.  But  a  few  fragments  remain  of  these  celebrated 
enactments,  and  little  is  known  of  the  detail  of  those  which 
they  superseded  ;  but  so  far  as  can  be  ascertained  or  in- 
ferred, the  Twelve  Tables  seem  in  a  great  measure  to  have 
been  a  digest  of  the  former  statutory  and  customary  law. 

§  90.  The  regulations  embodied  in  this  code  were  cer- 
tainly rude  and  severcj  suited  only  to  an  uncultivated  and 
partially  barbarous  people,  little  adapted  to  the  subsequent 
growth  of  the  state,  and  its  progress  and  refinement  in  arts, 
manners,  intelligence,  and  general  civilization.  The  arrange- 
ment of  the  laws  of  the  Twelve  Tables  seems  to  have  been 
as  follows  : 

Tables  1  and  2.  Forms  of  Judicial  Proceedings. 

Table  3.  The  Law  of  Loans,  Bailments,  etc. 
.     Table  4.  The  Law  of  Parent  and  Child. 

Table  5.  The  Law  of  Inheritance  and  AVardship. 

Table  6.  The  Law  of  Property  and  Possession, 

Table  Y.  The  Law  of  Damages. 

Table  8.  The  Law  of  Servitude. 

Table  9.  The  Public  or  Political  Law. 

Table  10.  The  Law  as  to  Punerals. 

Table  11.  The  Pontifical  Law. 

Table  12.  The  Law  of  Marriage  and  Divorce. 

§  91.  From  the  date  of  the  establishment  of  the  laws 
of  the  Twelve  Tables,  b.  c.  451,  to  the  commencement  of 
the  reign  of  the  Emperor  Justinian,  a.  d.  527,  was  a  period 
of  9Y8  years.  During  this  time  Rome  had  passed  through 
the  glories  of  the  repubhc  and  empire,  and  into  its  rapid  de- 
cline ;  i^he  had  emerged  from  the  provincial  rudeness  of  the 
early  period  into  the  culture  in  arts,  letters,  and  intellectual 
activity  of  the  Augustan  age,  and  had  again  partially  sunk 


60  STATUTES. 

into  the  embraces  of  barbarism.  Her  god  Terminus  had 
steadily  marched  to  the  confines  of  the  known  world,  had 
there  maintained  his  firm  stand  for  long  generations  and  dy- 
nasties, and  had  receded  until  even  Italy  and  the  imperial 
city  itself  had  been  yielded  to  the  invaders.  During  these 
ten  centuries  the  Roman  law  had  made  a  progress  equal  to 
that  of  the  Roinan  arms.  It  had  been  developed  by  senate 
decrees,  by  resolutions  of  the  assemblies,  by  the  edicts  of 
magistrates,  by  the  writings  of  jurists,  and  by  the  constitu- 
tions of  emperors.  And  now  the  animating  life  had  de- 
parted ;  the  laAV  was  no  longer  a  growing  organism,  instinct 
with  vitality,  the  variable  exponent  of  the  nation's  civiliza- 
tion. The  time  for  a  codification  had  arrived,  "When  Jus- 
tinian ascended  the  throne,  but  few  attempts  had  been  made 
to  reduce  this  vast  growth  into  any  well-defined  shape  and 
symmetry.  Under  the  Emperor  Theodosius,  a  code  had 
been  made  of  the  constitutions,  analogous  to  a  modern  re- 
vision or  digest  of  statutes  ;  but  the  unwritten  law,  whether 
the  product  of  judicial  magistrates  or  of  learned  ex- 
pounders of  jurisprudence,  still  lay  scattered  through  num-, 
berless  wi'itings,  whose  very  multitude  prevented  any 
thorough  study  of  the  science.  Justinian  determined  to 
reduce  all  of  the  existing  municipal  law  to  one  complete 
code.  To  this  end  he  intrusted  the  work  to  commissioners, 
over  whom  presided  the  first  jurist  of  that  age,  Ti-ibonian. 
"  The  theory  of  professors,"  says  Giltbon,  "  was  assisted  by 
the  practice  of  advocates  and  the  experience  of  magistrates, 
and  the  whole  undertaking  was  animated  by  the  spirit  of 
Ti-iboniau."  The  imperial  plan  was  to  prepare  first  a  com- 
pilation of  the  constitutions,  and  second,  a  digest  of  the  un- 
written law.  The  commission  was  appointed  in  February, 
A.  D.  528,  and  the  first  work  was  completed  and  sanc- 
tioned by  the  Emperor  in  April,  529.  It  was  subsequently 
again  revised  and  received  further  additions,  and  was  com- 
pleted in  November,  534.  This  work  is  known  as  "  The 
Code."     It  is  made  up  of  imperial  constitutions  selected  out 


CODES    OF   JUSTINIAN.  51 

from  the  vast  multitude  of  similar  statutes,  and  arranged  in 
order,  forming  twelve  books,  which  are  again  divided  into 
titles,  and  each  title  into  laws.  Another  commission  under 
the  same  presidency  was  appointed  in  December,  a.  d. 
530,  for  the  second  undertaking,  to  collate,  arrange,  sim- 
plify, and  codify  the  legal  principles  which  were  scattered 
through  the  v\^ritings  of  jurists,  or,  in  other  words,  to  em- 
body the  law  of  virtual  judicial  decision.  This  was  a  work 
of  vast  magnitude,  because  the  material  must  be  sought  for 
among  the  legislation  of  a  thousand  years,  and  because  the 
principles  at  first  announced  to  meet  particular  cases  must 
be  arranged  in  a  comprehensive  and  scientific  form,  and 
because  the  compilers  had  absolutely  no  precedent  to  fol- 
low in  their  labors.  It  would  be  justly  esteemed  a  hercu- 
lean task  to  codify  the  unwritten  law  of  England,  and  yet 
English  lawyers  would  have  the  aid  of  all  other  codes  and 
systems,  and  thus  models  nearly  perfect  upon  which  to 
proceed.  The  Koman  commission  had  no  such  helps,  but 
in  three  years  their  work  was  done  and  published  to  the 
empire.  It  has  received  the  names  of  the  "  Digest "  and 
the  "  Pandects."  It  is  divided  into  fifty  books,  and  most 
of  these  again  into  titles.  In  addition  to  these  exhaustive 
compilations,  the  Emperor  directed  an  introduction  to  be 
prepared  to  the  other  two,  designed  for  the  use  of  students 
of  legal  science.  The  Code  and  the  Pandects  were  intended 
to  sum  up  the  entire  legislation  of  the  empire,  and  were  of 
course  too  bulky  to  be  used  as  text  books  in  law  schools. 
Tribonian  and  two  law  professors  composed,  and,  in  Novem- 
ber, A.  D.  533,  published  the  Institutes,  which  were  also  de- 
creed to  have  the  force  of  law.  The  Institutes  consist  of 
four  books,  which  are  divided  into  titles,  and  subdivided 
into  sections.  The  work  treats  of  persons  as  the  subjects 
of  leg^l  rights,  of  things  as  the  objects  of  rights,  and  of 
actions  by  which  such  rights  are  enforced.  Book  I  is  de- 
voted to  persons,  Books  II,  III,  and  a  part  of  IV,  to 
things,  and  the  renjainder  of  the  book  to  actions.     These 


52  STATUTES. 

three  separate  elements,  the  Code,  the  Pandects,  and  the 
Institutes,  together  with  a  few  additional  constitutions 
under  the  name  of  Novels,  form  the  Corpus  Juris  CiviUs, 
or  body  of  the  Koman  law,  which  had  passed  through 
its  periods  of  growth  and  vitality,  and  had  been  crystal- 
lized into  the  positive  form  of  a  single  statutory  enact- 
ment. As  such  it  has  come  down  to  our  own  times,  an 
inexhaustible  fund  of  legal  principles  whence  so  much 
of  the  legislation  of  Europe  and  Auierica  has  drawn  its 
nourishment. 

§  92.  The  most  important  and  widely  known  of  modern 
national  codifications  is  that  of  France,  prepared  and  estab- 
lished as  the  body  of  the  French  municipal  law  by  Napo- 
leon, under  the  name  of  the  Five  Codes.  Previous  to  the 
Revolution,  the  jurisprudence  of  France  was  in  a  most  con- 
fused and  unsatisfactory  condition,  and  loudly  called  for 
amendment  and  revision.  This  was  partially  accomplished 
during  the  first  years  of  the  republic,  and  the  criminal  law 
in  particular  was  much  modified  and  amended.  Napoleon 
formed  and  executed  the  plan  of  reducing  all  the  law, 
which  was  partly  customary  and  local,  and  partly  based 
upon  the  Roman,  into  short,  simple,  precise,  and  definite 
codes.  In  their  preparation  the  most  extreme  care  was 
used  to  eliminate  every  error,  to  provide  for  every  result,  to 
test  the. expediency  of  every  proposed  measure.  The  dis- 
cussions were  frequent  and  searching,  and  the  whole  passed 
through  many  review^  before  it  was  finally  adopted  as 
positive  law.  In  August,  1800,  a  committee  was  appointed 
for  this  pui-pose,  who  reported  in  the  following  year  the 
draft  of  a  civil  code.  This  draft  was  submitted  to  the 
judges  of  the  highest  courts  of  the  nation  for  revision,  and 
afterward  was  discussed,  article  by  article,  in  the  council  of 
state,  over  which  Napoleon  j^rcsided  It  was  transmitted 
from  that  body  to  another  council,  when  the  articles  were 
adopted,  amended,  or  rejected. 

§  93.  The   first  and  principal  result  of  this  care  and 


CODES    OF    FRANCE.  63 

labor  was  the  Code  Najpoleon  ;  or,  as  it  has  since  been 
called,  the  Code  Civil.  To  render  its  provisions  simple 
and  precise,  it  is  divided  into  many  short  paragraphs, 
which  are  numbered  for  convenience  of  reference.  The 
whole  is  separated  into  three  books  corresponding  to  grand 
divisions  of  legal  science.  The  first  book  treats  of  persons, 
the  second  of  property  and  the  different  modifications  of 
ownership,  and  the  thira  of  the  modes  "of  acquiring  prop- 
erty. Book  I  contains  eleven  titles,  viz.  :  1.  Of  the  enjoy- 
ment and  privation  of  civil  rights  ;  2.  Of  civil  acts,  such  as 
the  registry  of  births,  marriages,  and  deaths  ;  3.  Of  domi- 
cil ;  4.  Of  absentees ;  5.  Of  marriage  ;  6.  Of  divorce ;  7. 
Of  father  and  child  ;  8.  Of  adoption,  and  one  kind  of  guar- 
diansliip ;  9.  Of  the  parental  power ;  10.  Of  minority, 
guardianship,  and  emancipation ;  11.  Of  majority,  and  the 
guardianship  of  persons  of  age. 

Book  II  contains  four  titles  :  1.  Of  the  divisions  of  real 
and  personal  property  ;  2.  Of  ownership ;  3.  Of  usufruct, 
of  use  and  habitation  ;  4.  Of  servitudes  or  easements. 

Book  III  contains  twenty  titles :  1.  Of  successions  and 
inheritances ;  2.  Of  donations  between  the  living,  and  of 
wills ;  3.  Of  contracts  expressed  ;  4.  Of  engagements  or 
obligations,  without  a  formal  agreement ;  5.  Of  the  contract 
of  marriage  and  the  riglits  of  the  parties  ;  6.  Of  sales ;  7. 
Of  exchange ;  8.  Of  letting  to  hire ;  9.  Of  partnerships ; 
10.  Of  loans  ;  11.  Of  deposits  ;  12.  Of  contracts  connected 
with  chance ;  13.  Of  agency ;  14.  Of  security ;  15.  Of 
compounding  actions  ;  16.  Of  arrest  in  civil  cases  ;  17.  Of 
pledges  ;  18.  Of  mortgages ;  19.  Of  forcible  ejection,  and 
order  of  distribution  among  creditors  ;  20.  Of  prescriptions. 

In  addition  to  the  Code  Civil,  the  Code  de  Commerce 
contains  the  regulations  of  commerce  and  navigation.  The 
criminal  law  is  comprised  in  the  Code  Penal,  which  defines 
crimes  and  apportions  the  punishment,  and  in  the  Code 
d'' Instruction  Criminelle,  which  directs  the  whole  judicial 
procedure  by  which  an  offender  is  arrested,  tried,  and  con- 


54  STATUTES. 

demned.  Finally,  the  Code  de  Procedure  Civile  regulates 
the  practice  and  procedure  in  civil  actions.  Tliese  five 
codes,  adopted  and  promulgated  under  the  auspices  of  Na- 
jioleon,  formed  the  body  of  th-e  law  of  France  regulating 
private  rights  and  duties,  and  tliey  remain,  with  slight 
alterations,  to  the  present  day.  They  were  introduced  into 
several  otlier  countries  by  the  victorious  arms  of  the  empire, 
but  with  the  fall  of  Napoleon  have  given  place  again  to  the 
local  laws.  They  certainly  possess  the  merits  of  brevity, 
clearness,  and  precision,  and  are  a  vast  improvement  upon 
the  confused  and  often  contradictory  law  which  they  super- 
seded, but  have  not  prevented  an  accumulation  of  judicial 
decisions  built  upon  and  expository  of  their  provisions. 

§  94:.  National  codes  of  private  law  have  been  adopted 
in  several  other  European  countries,  among  which  are 
Prussia  and  Austria.  These  all  have  for  their  basis  the 
Eoman  law,  as  preserved  in  the  compilations  of  Justinian, 
In  England  the  plan  of  codifying  has  never  met  with  favor 
among  the  lawyers,  with  the  bench,  or  with  government. 
No  attempt  has  ever  been  made  to  digest  and  consolidate 
the  statutes,  even  those  relating  to  afiiliated  classes  of  sub- 
jects. 

§  95.  In  many  of  the  States  of  America,  partial  codifi- 
cation is  common,  and  in  Louisiana  the  whole  municipal 
law  has  been  recast  into  that  form.  The  jurispradence  of 
the  territory  of  Orleans,  before  it  was  ceded  to  the  United 
States,  was  derived  from  that  of  France  and  Spain.  In 
1824,  under  the  authority  of  the  legislature,  the  "  Civil 
Code  of  the  State  of  Louisiana  "  was  prepared  and  enacted. 
The  groundwork  of  this  statute  is  essentially  the  Roman 
law  ;  it  follows  in  many  of  its  features  the  Code  Napoleon 
of  France,  and  is  very  unlike,  in  its  methods,  statements, 
reasoning,  and  provisions,  the  legislation  of  the  other  States 
of  the  Union.  Suljsequentl}'  a  criminal  code  was  adopted, 
which  more  nearly  conforms  to  the  English  and  American 
law. 


KEVISED   STATUTES    OF   NEW    TOKK.  55 

§  96.  I  will  illustrate  a  partial  codification  by  that  oi  the 
State  of  New  York.  Prior  to  the  year  1830  the  law  of 
that  commonwealth  existed  in  its  condition  of  statutory  and 
unwritten,  very  similar  to  that  of  England.  In  that  year  a 
partial  code,  carefully  prepared  by  a  commission  appointed 
for  that  purpose,  was  adopted  by  the  Legislature,  under  the 
name  of  the  Ke vised  Statutes.  This  remarkable  work  is 
partly  a  digest  of  former  statutes,  and  partly  a  codification 
of  legal  principles  and  rules  which  had  been  established  by 
the  courts.  The  revisers,  however,  often  greatly  altered, 
and  sometimes  entirely  restated  these  rules  of  the  common 
law.  The  Revised  Statutes  do  not  assume  to  interfere 
with  many  of  the  most  important  departments  of  the 
private  law,  leaving  untouched  the  subject  of  personal  con- 
tracts and  all  the  vast  interests  which  flow  from  it,  com- 
mercial and  maritime  law,  the  law  of  personal  rights  and 
duties,  and  the  law  of  evidence.  This  code  consists  of  two 
principal  divisions,  the  first  relating  to  the  political  juris- 
prudence of  the  State,  and  the  second  being  confined  to 
private  law.  The  first  division,  in  general  terms,  embraces 
the  administrative  machinery  of  the  government ;  the  inter- 
nal divisions  of  the  territory  ;  the  local,  county,  and  town 
governments ;  the  care  of  the  poor ;  the  construction  and 
maintenance  of  highways  ;  the  management  of  canals  and 
other  internal  improvements  ;  also  regulations  of  a  quasi 
public  character,  including  the  formation  and  control  of 
banking,  railway,  and  other  corporations,  and  similar  sub- 
jects. In  the  second  division  of  the  work,  one  title  ia 
devoted  to  real  property.  Here  the  changes  are  the  most 
numerous  and  radical,  and  have  gone  far  toward  reducing 
the  unwritten  law  to  a  few  short  chapters,  made  up  of 
brief  and  concise  sections.  Another  title  treats  of  succes- 
sions, or  the  management,  settlement,  and  distribution  of 
the  ^states  of  deceased  persons,  and  the  powers  and  duties 
of  executors  and  administrators.  Another  still  is  a  com- 
plete code  of  crimes  and  punishments,  replacing  entirely 


66  STATUTES. 

the  unwritten  law,  and  substituting  tlie  certainty  of  a 
statute  for  its  somewhat  vague  and  shifting  rules.  Another 
title  is  devoted  to  the  organization  and  jurisdiction  of 
courts,  and  the  methods  of  procedure  therein. 

§  97.  One  peculiarity  of  this  and  other  such  revisions  is 
that,  as  it  does  not  purport  to  contain  the  entire  jurispru- 
dence of  the  State,  it  leaves  the  old  unwritten  law  still  in 
existence,  surrounding  and  penetrating  it,  explaining  its 
provisions,  supplying  its  omissions,  and  to  a  certain  extent 
correcting  its  mistakes.  The  important  branches  of  the 
private  law  which  it  has  remodelled  are  those  of  real  estate, 
of  successions,  and  of  crimes  and  punishments ;  its  refer- 
ences to  other  departments  are  rather  incidental  and  excep- 
tional, not  serving  to  disturb  the  general  current  of  judicial 
decision.  I  have  thus  described  somewhat  particularly  the 
Revised  Statutes  of  New  York,  because  they  form  an  im- 
portant element  in  our  national  methods  of  legislation,  and 
have  been  closely  copied  or  essentially  followed  in  very 
many  of  the  other  American  commonwealths. 


CHAPTER  II. 

THE  UNWRITTEN  LAW,  OR  LAW   OF  JUDICIAL  DECISION:  ITS 
MEANS  AND  INSTRUMENTS  OF  DEVELOPMENT, 

§  98.  The  second  grand  division  of  the  municipal  law 
lias,  in  England  and  America,  been  wrought  into  the  form 
of  precise  and  authoritative  regulations,  through  the  agency 
of  judicial  tribunals.  The  process  of  growth  has  of  course 
been  slow,  and  to  a  certain  extent  irregular  and  unscientific. 
Our  institutions  do  not  permit  that  the  judges  of  the  several 
courts  should  at  any  time  set  forth  and  enact  a  comprehen- 
sive system  of  laws,  nor  even  of  the  rules  which  relate  to 
any.  particular  subject  or  class  of  subjects.  They  do  not 
assume  to  legislate  in  the  manner  and  form  of  parliaments  ; 
they  do  not  pretend,  by  any  one  decision  or  series  of  de- 
cisions, to  exhaust  a  topic,  and  to  give  all  the  relations  and 
bearings  of  a  principle.  Each  case  which  arises  before 
them  is  determined,  and  the  particular  rules  necessary  for 
its  separate  decision  are  stated,  and  thus  pass  into  the 
domain  of  positive  law.  As  multitudes  of  cases  succeed 
each  other,  the  system  is  slowly  built  up  by  steady  accre- 
tions. Of  the  spirit  and  essential  features  of  this  gradual 
development  of  the  unwritten  law,  I  shall  speak  at  large 
in  the  following  chapter.  The  present  chapter  is  devoted 
to  a  description  of  the  machinery  through  whose  means 
this  development  has  been  effected,  the  organization  and 
jurisdiction  of  courts,  and  the  methods  by  which  a  legal 


68  THE    UNWKITTEN    LAW. 

dispute  is  conducted  from  its  commencement  to  the  final 
judgment  establishing  the  rights  of  the  parties,  and  giving 
a  sanction  to  the  legal  rule. 


SECTION  I. 

DIVISIONS    OF   THE    SCBJECT. 

§  99.  In  the  practical  operation  of  a  national  jurispru 
dence,  as  well  in  states  of  modern  Europe  as  in  the  Roman 
commonwealth,  two  classes  of  questions  must  be  presented 
to  courts,  to  be  determined  in  each  particular  case, 

1.  The  one  class  requires  the  examination,  by  means  of 
evidence,  and  the  decision  of  controverted  matters  of  fact,  and 

2,  The  other  demands  the  formal  statement  and  appli- 
cation of  the  rules  of  law  which  are  involved  in  the  admit- 
ted or  proven  facts. 

§  100.  Corresponding  to  these  divisions  of  the  questions 
which  enter  into  the  judicial  settlement  of  all  legal  dis- 
putes, courts  maj,  from  their  inherent  nature,  be  separated 
into  two  classes,  viz. : 

1.  Those  which  provide  different  persons  to  decide  the 
facts  and  the  law  ;  and, 

2.  Those  in  which  both  subjects  are  committed  to  the 
same  jiidges.  In  these  two  general  divisions  are  included 
all  the  forms  and  species  of  courts  wliich  are  in  use  in  civil- 
ized countries. 

§  101.  Again,  the  methods  of  bringing  the  disputes  of 
parties,  and  the  various  particulars  involved  therein,  to  the 
attention  of  the  courts,  so  that  they  may  acquire  the  power 
and  knowledge  to  decide,  are  different.     They  may  be, 

1.  By  informal  oral  statements  ; 

2.  By  a  more  formal  written  explication  ; 

3.  By  a  combination  of  the  two. 

These  tlircc  divisions  include  all  the  means  of  presenting 
questions  of  fact  and  law  to  a  judicial  tribunal  by  process, 
by  pleadings,  by  evidence,  and  by  argument. 


GENERAL    DIVISIONS.  59 

§  102.  Looking  at  tliis  subject  from  a  standpoint  back 
of  all  experience,  we  should  naturally  suppose  that  the  in- 
struments and  forms  for  trying  legal  controversies  would 
have  been  contrived  with  sole  reference  to  a  speedy,  sim- 
ple, and  effectual  discovery  and  establishment  of  the  truth  ; 
that  they  would  but  slightly  feel  the  power  of  the  past 
moulding  their  character.  We  shall  find,  however,  that  no 
other  portion  of  our  jurisprudence  more  clearly  shows  the 
effect  of  the  national  history.  None  of  these  methods  have 
been  invented  or  arranged  upon  any  a  priori  reasoning ; 
they  are  rather  the  results  of  ancient  institutions  and  cus- 
toms perpetuated  to  our  day,  greatly  modified  indeed  from 
time  to  time,  and  in  later  years  losing  much  of  their 
original  arbitrary  character.  This  truth  will  be  plain  when 
I  shall  speak  in  particular  of  judicial  procedure,  and  show 
the  influence  of  Saxon,  Feudal,  and  Roman  law  upon  it. 

§  103.  In  considering  the  branch  of  my  subject  to 
which  the  present  chapter  is  devoted,  I  shall  first  proceed 
to  investigate  the  method  of  separating  the  facts  from  the 
law  in  judicial  trials,  and  committing  their  decision  to  dis- 
tinct classes  of  persons,  and  therein  to  give  a  sketch  of  the 
origin,  progress,  and  use  of  the  English  and  American  jury 
trial. 

Secondly,  1  shall  set  forth  the  origin,  history,  and  juris- 
diction of  the  English  and  American  courts,  and  compare 
them  somewhat  with  those  of  other  countries,  ancient  and 
modern.  Under  this  head  I  shall  treat,  1st,  Of  those  supe- 
rior courts  which  use  the  jury  as  a  part  of  their  regular 
organization,  and  which  are  technically  known  as  "  law 
courts  ; "  2d,  Of  equity  courts  ;  3d,  Of  ecclesiastical  courts  ; 
4th,  of  admiralty  courts. 

Thirdly,  I  shall  explain  the  maimer  in  which  a  contro- 
versy is  brought  before  these  several  tribunals,  and  by  them 
considered,  tried,  and  decided,  and  shall  compare  these 
methods  with  those  of  some  other  countries,  anciei,t  and 
modern.     This  review  will  describe  the  means  by  wliich 


60  TUE    U^'^VKITTEN■   LAW. 

rights  and  dutits  are  legally  enforced  tlirongli  actions^  and 
will  state, 

1st.  The  foundation  of  an  action  by  the  original  process 
or  proceeding,  through  which  the  court  acquires  jurisdic- 
tion over  the  subject  matter  and  the  person  complained  of. 

2d.  The  origin,  history,  and  divisions  of  the  various 
kinds  of  action,  with  the  reasons  for  their  invention,  and 
the  uses  which  they  have  subserved  in  developing  the  law. 

3d.  The  manner  of  introducing  the  disputed  facts  and 
the  respective  claims  of  the  parties  to  the  attention  of  the 
court  by  the  formal  pleadings. 

4th.  The  method  of  proving  the  asserted  facts  by  evi- 
dence offered  to  the  judges  or  juries  whose  province  it  is  to 
decide  these  questions. 

5th.  The  method  of  establishing  the  propositions  of  law 
by  the  arguments  of  counsel,  and 

6th.  The  action  of  the  jury  and  judges  in  deciding  and 
rendering  a  judgment,  and  the  effe(;t  of  the  latter  upon  the 
rights  of  the  parties  and  upon  the  law. 

Tliis  outline  will  include  both  civil  and  criminal  pro- 
ceedings. 

SECTION  II. 

OP   THE    SEPARATION    OF   THE    QUESTIONS    OF    LAW   FROM    THOSE    OF   FACT, 
AND    HEREIN    OF   THE    JURY    TRIAL. 

§  104.  Tlie  moflern  jury  trial  is  undoubtedly  a  develop- 
ment of  English  institutions  and  civilization.  It  has,  of 
late  years,  been  imported  from  England  into  some  of  the 
continental  states  of  Europe,  and  there  drags  out  an  unnatu- 
ral and  sickly  life.  The  practice  of  separating  the  ques- 
tions of  law  from  those  of  fact,  and  intrusting  their  decision 
to  distinct  tribunals,  is,  however,  on  ancient  as  the  earliest 
days  of  the  Eoman  republic.  It  was  fully  organized  by 
the  Roman  jurisprudence,  and  for  centuries  formed  a  part 
of  their  ordinary  [)rocedure  in  the  trial  of  civil  causes. 


EOMAN   JUDICIAL   TRIALS.  61 

§  105.  Two  distinct  and  eqnally  important  elements  are 
involved  in  the  idea  of  the  modern  jury  trial.  These  are 
the  allotment  of  the  matters  of  fact  to  a  number  of  indi- 
viduals specially  appointed  for  that  purpose,  different  from 
the  official  judges  ;  and  the  free  choice  of  these  persons  for 
each  particular  case  from  the  general  mass  of  the  worthy 
citizens  of  the  state.  In  our  investigation  into  the  origin 
and  history  of  trial  by  jury,  we  should  remember  that  these 
two  elements  are  by  no  means  necessarily  connected  ;  that 
the  existence  of  one  does  not  presuppose  the  other.  In- 
deed, each  has  for  centuries  formed  a  part  of  great  national 
institutions  without  the  other.  The  Romans  had  the  iirst  ^ 
the  ancient  Germanic  tribes,  who  subjugated  the  western 
Roman  provinces,  the  Franks,  the  Saxons,  and  others,  had 
the  second,  their  courts  being  made  up  from  the  body  of 
the  people,  but  determining  at  once  the  law  and  the  facts. 
We  must  examine  the  course  of  development  of  both  these 
ideas  before  we  can  arrive  at  a  correct  conception  of  the 
English  and  American  jury  trial. 

§  106.  A  slight  sketch  of  the  Roman  procedure  will 
now  suffice  to  exhibit  their  practice  in  treating  the  ques- 
tions of  fact  in  a  forensic  contest ;  a  more  complete  account 
will  be  given  hereafter.  Without  going  back  to  the  times 
of  the  kings,  when  our  knowledge  of  judicial  institutions 
and  proceedi^ngs  is  somewhat  vague,  we  find  in  the  second 
period  of  the  history  of  the  Roman  law,  commencing  with 
the  Twelve  Tables,  that  an  orderly  and  well  compacted  sys- 
tem was  established.  Passing  by  the  criminal  jurispru- 
dence, there  were,  for  the  consideration  of  civil  causes,  dis- 
tinct magistrates,  whose  functions  were  similar  in  principle 
to  those  of  our  superior  judges.  The  most  important  of 
these  were  the  prsetors.  These  magistrates  possessed  two 
kinds  of  jurisdiction,  the  one  ordinary,  the  other  extraor- 
dinav'Lj.  In  the  former  they  were  the  sole  judges  of  the 
law.  Actions  w^ere  commenced  before  them ;  the  parties 
made  their  allegations  or  pleadings,  which  were  reduced  to 


62  THE   UNWRITTEN    LAW. 

writing ;  the  issue  was  joined,  or,  in  other  words,  the  law 
and  facts  stated  upon  one  side  were  denied  on  the  other, 
and  the  cause  was  ready  for  trial.  The  magistrate  at  this 
point  rendered  his  decision  upon  the  law,  (which  was  neces- 
sarily conditional  in  its  character),  defining  the  legal  rule 
applicable  to  the  case,  and  showing  how,  if  the  facts  should 
he  established  in  one  way  or  another,  the  judgment  should 
be  given.  All  tliis  was  done  before  the  evidence  was  intro- 
duced to  pi-ove  the  facts.  Here  the  judicial  functions  of 
the  magistrate  ended,  and  he  transmitted  the  cause  to  a 
judge  (Judex),  agreed  upon  by  the  parties  or  appointed  by 
himself,  who  heard  the  proofs,  decided  the  facts,  and  gave 
a  final  judgment  under  the  guidance  of  the  rule  of  law  laid 
down  by  the  magistrate.  The  proceedings  before  him  were 
similar  to  those  before  our  juries  ;  witnesses  were  examined, 
counsel  argued,  and  a  verdict  was  rendered. 

§  107.  It  is  easy  to  see,  under  outward  differences,  a 
striking  analogy  between  this  Roman  method  and  our  own. 
With  us  there  is  one  trial ;  the  testimony  is  offered  before 
judge  and  jury  together ;  at  its  conclusion  the  court  pro- 
nounces the  law  in  the  form  of  an  oral  charge,  and  the  jury 
consider  the  facts  in  the  light  of  the  directions  received 
from  the  bench.  The  Eoman  procedure  required  in  fact 
two  trials :  at  one  the  legal  principle  was  discussed  and 
decided  by  a  magistrate,  and  reduced  to  a  written  form, 
which  supplied  the  place  of  a  charge ;  at  the  other  the  facts 
were  determined,  and  a  decision  made  settling  the  rights  of 
the  parties  by  a  lay  judge.  The  proceeding  before  the 
magistrate  was  said  to  be  in  jure  ^  that  before  the  judge 
was  in  judicio.  It  is  thus  evident  that,  by  the  Roman 
procedure,  the  questions  of  law  and  those  of  fact  were  even 
more  completely  separated  in  judicial  trials  than  by  our 
own. 

§  lOS.  From  whom  the  judges  (judices)  were  selected  in 
eacli  i»articular  case  does  not  clearly  appear.  Some  writers 
suppose  that  their  choice  was  confined  to  a  small  body  of 


EOMA.lSr   JUDICIAL   TKIAL8.  63 

the  citizens  specially  designated  for  that  purpose.  In  cer- 
tain cases  the  cause,  instead  of  being  sent  to  a  single  judge, 
was  committed  to  a  number  of  persons  called  recwperatores  ^ 
but  of  their  character  and  functions,  fiuiher  than  that  they 
were  judges  of  the  facts,  according  to  Hugo,  very  little  is 
known.  When  the  judge  was  directed  to  decide  according 
to  equity  and  good  conscience,  without  strict  reference  to 
the  instructions  of  the  magistrate,  lie  was  called  an  arbiter. 
It  is  certain  that  the  great  body  of  the  citizens  were  not 
called  upon,  as  they  are  in  England  and  America,  to  inter- 
fere in  judicial  contests,  and  to  take  a  controlling  part  in 
forensic  trials  in  civil  causes,  but  that  the  judges  of  fact, 
though  laymen,  were  a  special  and  limited  class.  This  was 
the  ordinary  jurisdiction  of  the  magistrate ;  by  the  extra- 
ordi7iary,  he  decided  at  once  the  law  and  the  facts  of  a 
cause. 

§  109.  Thus  the  institution  existed  for  centuries,  during 
the  republic  and  under  a  portion  of  the  emperors,  the  extra- 
ordinary power  of  the  prastors  constantly  increasing  and 
supplanting  the  ordinary,  until,  by  an  edict  of  the  Emperor 
Constantius,  a.  d.  352,  the  latter  was  abolished,  and  the 
only  method  of  trial  became  that  in  which  all  the  ques 
tions  were  left  to  the  same  magistrate  for  decision.  This 
practice  was  incorporated  in  the  final  codification  of  the 
Eoman  law  under  Justinian,  and  has  descended  to  us  as 
one  of  its  essential  features,  particularly  distinguishing  it 
from  the  common  law  of  England.  "With  the  change  made 
in  the  Roman  jurisprudence  by  the  imperial  policy,  the 
separation  of  the  questions  of  law  and  fact  disappeared  in 
European  states,  to  reappear  centuries  after,  while  the  Eng- 
lish jury  trial  was  reaching,  through  many  progressive 
stages,  its  present  well-defined  form        ,, 

§  110.  I  now  propose  to  sketch  the  origin  and  develop- 
ment ^of  that  feature  o<^  the  trial  by  jury  which  demands 
that  the  jurors  shah  be  chosen  at  large  from  the  body  of 
the  responsible  citizens  of  a  county  or  district,  calling  upon 


64  THE    UNWRITTEN    LAW. 

the  people  to  perform  duties  in  forensic  trials  equal  in  im- 
portance to  those  of  the  judges.  This  idea  is  undoubtedly 
of  Germanic  oiigin.*  The  German  tribes,  at  the  time  of 
the  final  irruptions  into  Gaul  and  Italy  and  Britain,  had 
nothing  like  our  jury,  yet  they  possessed  judicial  institu- 
tions, which,  by  the  natural  progress  of  society  in  civiliza- 
tion and  the  constant  adaptation  of  old  principles  to  new 
uses,  have  developed  into  the  strict  trii.l  by  jury.  These 
tribunals  seem  to  have  been  confined  to  no  one  tribe,  but  to 
have  been  common  to  all  the  separate  nations  which,  at 
different  epochs,  effected  a  lodgment  in  the  Roman  prov- 
inces.    Herein  we  may  discover  one  bond  which  linked 

•  Mr.  Spence,  in  his  history  of  the  Equitable  Jurisdiction  of  the  Court  of 
Chancery,  vol.  1,  pp.  65,  66,  declares  that  the  Courts  of  freemen,  which,  he  ac- 
knowledges, were  common  to  all  the  Germanic  tribes  after  their  conquests,  were 
still  not  of  German  origin,  but  were  borrowed  by  these  rude  barbarians  from  the 
Roman  provincial  institutions.  Strangely  enough  he  cites  Savigny,  (History  of 
the  Roman  Law  during  the  Middle  Ages),  in  support  of  this  position.  While 
acknowledging  much  useful  help  from  Mr.  Spence's  work,  and  readily  conceding 
that  it  is  a  most  valuable  contribution  to  the  history  of  English  law,  I  am  con- 
strained to  differ  from  that  learned  writer  in  this,  as  in  many  other  important 
particulars.  Mr.  Spence  seems  to  be  carried  away  with  very  slight,  casual,  out 
ward  resemblances  between  the  institutions  of  different  people,  without  duly 
considering  whether  they  have  any  real  ethnic  or  other  connection,  as  of  cause 
and  effect,  or  germ  and  fruit.  He  is  entirely  mastered  by  the  idea  that  almost 
all  the  customs  and  laws  of  the  German  invaders,  as  they  appear  to  us  far  back 
towards  the  conquest  as  annals  run,  were  the  products  of  the  superior  Roman 
civilization  and  juri.«prudence  acting  upon  the  untutored  barbarians.  I  shall 
have  occasion  hereafter  to  remark  upon  his  theory  of  the  origin  of  the  feudal 
system.  In  regard  to  the  particular  point  under  consideration,  M.  Savigny  is 
clear  and  abundant  in  his  denjonstration  of  the  complete  Germanic  origin  of  the 
idea  of  these  courts  of  freemen.  His  first  volume,  which  I  have  followed  in  the 
text,  and  which  I  shall  hereafter  follow,  leaves  nothing  to  be  questioned  upon 
this  subject,  and  when  Mr.  Spence  quotes  him  as  an  authority  for  his  own 
theory,  it  must  be  under  an  entire  misconception  of  that  distinguished  writer's 
meaning.  Mr.  Spence  has  also  overlooked  the  fact  that  the  Anglo-Saxons  did 
not  find  the  Roman  institutions  at  work  to  any  great  extent  in  Britain,  at  the 
time  of  their  invasion  ;  the  governors,  presidents,  judges,  as  well  as  the  legions, 
had  long  before  left  the  province,  and  abandoned  it  to  its  original  possessors, 
who,  in  their  internecine  wars,  soon  obliterated  most  of  the  traces  of  Roman 
rule. 


EARLY   GERMAN   FOLK-COURTS.  65 

these  rude  people  in  a  general  ethnic  relationship,  and  indi- 
cated the  state  of  culture  which  they  had  all  reached,  a 
state  far  enough  behind  that  of  the  feudal  ages,  but  greatly 
in  advance  of  the  condition  of  the  American  Indians,  to 
whom  they  have  been  likened  by  M.  Guizot  in  his  "'  Lec- 
tures on  the  History  of  Civilization." 

§  111.  Perhaps  the  most  striking  feature  of  the  polity 
of  the  Germanic  invaders,  the  Lombards,  the  Yisigoths,  the 
Burgundians,  the  Franks,  the  Saxons,  and  Angles,  was  the 
existence  among  them  of  a  class  who  bore  the  name  of 
Freemen.  Their  condition  was  not  simply  that  of  liberty 
as  opposed  to  slavery,  but  was  something  more  substantial, 
involving  the  capacity  to  enjoy  and  the  actual  exercise  of 
all  the  personal  rights  which  can  belong  to  citizens.  The 
territory  seized  by  the  barbarians  was  divided  into  districts 
or  cantons,  each  being  governed  by  a  count,  who  had  mili- 
tary command  and  civil  jurisdiction.  The  courts  were  held 
in  each  of  these  districts,  and  were  presided  over  by  the  count 
or  his  delegate,  while  they  were  in  fact  composed  of  the 
collective  freemen.  This  seems  to  be  the  outline  of  the 
system  at  once  established  by  the  conquering  Germans,  and 
it  would  do  violence  to  all  probability  to  suppose  that  it 
was  not  brought  by  them  as  a  part  of  their  national  institu- 
tions. 

§  112.  Among  the  Lombards  in  Italy  the  name  Ari- 
mann  was  given  as  a  general  term  of  description  to  the 
freemen,  and  distinguished  them  from  serfs  and  from 
magistrates.  Among  the  early  Franks  the  term  Eachin- 
bourgs  was  in  like  manner  applied  to  the  same  class,  as 
was  also  the  equivalent,  boni  homines,  good  men.  These 
freemen,  Arimanns,  Rachinbourgs,  or  boni  homines,  were 
originally  the  sole  judges  in  all  judicial  trials.  A  court  sat 
three  times  a  year  in  each  district,  and  special  ones  in  the 
intervafs  if  necessary.  They  were  presided  over  by  the 
count  or  other  magistrate,  but  he  took  no  paii;  whatever  in 
the  decision,  either  of  law  or  fact.  The  triers  of  all  cases 
5 


66  THE   UNWRITTEN   LAW. 

were  tlie  assembled  freemen,  either  corning  together  in  a 
mass  thrice  a  year,  or  specially  summoned  at  other  times. 
They  judged  the  fact,  and  applied  the  law.  There  was  no 
separation  of  these  questions,  but  the  good  men  and  true 
had  an  irresponsible  power  in  preserving  rights  and  enforc- 
ing duties.  The  count  probably  instructed  these  untutored 
judges,  but  could  not  compel  their  votes ;  he  could  only 
keep  them  in  order,  and  execute  their  judgments. 

§  113.  This  method  of  judicial  trial  prevailed  over  all 
the  states  which  were  subjected  to  the  German  domination. 
But  in  the  process  of  time  the  right  of  the  freemen  to  at- 
tend the  courts,  and  intervene  in  the  administration  of  just- 
ice, came  to  be  considered  as  a  burden  instead  of  a  sacred 
privilege,  and  Charlemagne  introduced  a  class  of  appointed 
or  selected  judges  termed  scabiui,  who  could  supply  the 
places  of  the  neglectful  freemen.  Still,  even  with  this 
revolution  in  the  constitution  of  courts,  the  freemen  were 
not  entirely  debarred  from  the  exercise  of  their  right  to  act 
as  judges  ;  they  might  still  claim  to  be  associated  with  the 
scabini,  and  to  aid  in  determining  the  controversies  brought 
to  them  for  adjudication. 

§  114.  Among  the  Anglo-Saxons  the  same  institutions 
prevailed.  Without  examining  at  this  place  the  different 
kinds  of  courts,  it  is  sufficient  to  say  that  they  were  pre- 
sided over  by  an  ealdorman,  a  high  official  corresponding  to 
the  Frankish  count,  or  by  a  deputy  or  delegate  (gerefa), 
assisted  in  later  times  by  a  bisliop  or  other  ecclesiastic,  and 
were  composed  of  the  freemen  of  the  shire  or  other  district 
in  which  the  court  was  held.  Tliese  freemen  decided  the 
whole  controversy,  and  the  sole  duty  of  the  ealdorman  was 
to  carry  their  judgments  into  effect.  An  account  of  the 
proceedings  in  one  of  these  courts,  taken  from  an  old  chron- 
icle, may  not  be  uninteresting.  In  the  reign  of  King  Knut, 
a  shire  gemote,  or  court  of  the  county,  was  held,  presided 
over  by  the  ealdorman  and  a  bishop,  and  composed  of  a 
large  number  of  thanes,  or  freemen :    "  To   this   gemote 


SAXON   F0LK-C0UKT8.  67 

Edwin  came,  and  spake  against  his  mother  concerning 
some  lands.  The  bishop  asked  who  would  answer  for  her. 
Thurcil  the  White  said  he  would  if  he  knew  the  complaint, 
but  that  he  was  ignorant  about  it.  Three  thanes  of  the 
gemote  were  showed  where  she  lived,  and  rode  to  her  and 
asked  what  dispute  she  had  about  the  land  for  which  her 
son  was  impleading  her.  She .  said  that  she  had  no  land 
which  belonged  to  him,  and  was  angry  against  her  son. 
She  called  Lleofleda,  her  relation,  the  wife  of  Thurcil  the 
White,  and  before  them  thus  addressed  her :  '  Here  sits 
Lleofleda,  my  kinswoman.  I  give  thee  both  my  lands,  my 
gold,  and  my  clothes,  and  all  that  I  have  after  my  life.' 
She  then  said  to  the  thanes,  '  Do  thane-like,  and  relate  well 
what  I  have  said  to  the  gemote  before  all  the  good  men, 
and  tell  them  to  whom  I  have  given  my  lands  and  my 
property,  but  to  my  son  nothing,  and  pray  them  to  be  wit- 
nesses of  this.'  And  they  did  so,  and  rode  to  the  gemote, 
and  told  all  the  good  men  there  what  she  had  said  to  them. 
Then  stood  wp  Thurcil  the  White  in  that  gemote,  and 
23rayed  all  the  thanes  to  give  to  his  wife  all  the  lands  which 
her  relation  had  given  to  her  ;  and  they  did  so,  and  Thurcil 
the  White  rode  to  St.  Ethelbert's  church  by  all  the  folks' 
leave  and  witness,  and  left  it  to  be  set  down  in  our  Christ's 
book." 

§115.  Thus  we  find,  common  to  all  the  Germanic 
tribes,  from  Italy  to  Britain,  this  principle  of  the  freemen 
acting  as  judges  in  the  courts,  deciding  both  the  law  and 
the  facts.  In  it  we  have  the  germ  of  the  English  jury. 
This  latter  was  not  perfected  until  long  after,  during  which 
time  the  principle  had  been  recast  into  many  forms.  But 
the  progress  was  sure,  and  the  result  such  as  was  demanded 
by  the  growth  of  the  law  in  scientific  precision  and  com- 
prehensiveness. According  to  Eichhorn,  juries,  as  we  now 
understand  the  term,  were  introduced,  when,  the  law  hav- 
ing become  a  science,  the  impossibility  that  its  knowledge 
should  remain  popular  rendered  the  old  institution  imprao- 


68  THE   UNWKITl'EN    LAW. 

ticable.  Then  recourse  was  had  to  an  instructed  judge, 
who  sh  mid  decide  the  questions  of  law,  while  the  facts 
were  left,  as  before,  to  the  uninstrncted  freemen. 

§  116.  It  may  be  asked  why,  as  the  same  germ  of  the 
institution  existed  among  the  primitive  laws  and  customs 
of  the  affiliated  peoples  extending  over  the  whole  of  West- 
ern Europe,  did  not  the  jiu*j  trial  grow  up  by  natural 
sequence  of  events  in  France  and  Italy  and  Spain,  as  well 
as  in  England  ?  To  answer  this  question  I  must  a  little 
anticipate  a  subject  which  will  be  more  fully  treated  in  a 
subsequent  chapter — the  influence  of  the  Roman  law  upon 
modern  jurisprudence.  When  the  Germanic  tribes  invade'd 
Gaul  and  Italy  and  Spain,  they  found  a  Roman  civilization 
and  Roman  laws  firmly  established  and  controlling  the  en- 
tire populations.  By  that  law,  as  then  administered,  the 
magistrates,  as  I  have  shown,  judged  both  the  law  and  the 
fact  in  civil  cases.  The  Justinian  compilations  knew  no 
other  procedure.  This  system  of  jurisprudence,  though 
partially  overwhelmed  by  the  barbarian  polity,  never  ceased 
entirely  to  exist,  but  was  sufibred  to  flourish  side  by  side 
with  that  of  the  invaders.  In  the  progress  of  time,  as  the 
new  comers  and  their  descendants  became  more  and  more 
amalgamated  with  the  old  races,  the  state  of  society  ad- 
vanced, and  required  more  comprehensive  rules  of  legisla- 
tion, and  the  Roman  element  began  to  be  generally  felt  in 
moulding  the  jurisprudence  of  the  whole  people.  Thus  the 
national  ideas  of  the  conquerors  were  greatly  modified  by 
the  presence  and  influence  of  the  settled  provisions  of  the 
Roman  codes.  All  this  required  generations  and  centuries 
for  its  accomplishment,  but  the  final  result  was  uniform 
throughout  these  nations.  The  primitive  laws  of  the  Ger- 
mans were  recast  in  a  Roman  mould,  and  the  ancient  free 
triljunals  of  the  Arimanns  and  Rachinbourgs  gave  place  at 
lengtli  to  courts  constituted  upon  the  Imperial  model,  with 
professional  judges,  who  considered  all  the  questions  of  law 
and  fact  which  could  arise  on  the  trial  of  a  cause. 


GERM   OF   THE   JURY   TRIAL.  69 

§  117.  In  Britain  tlie  same  influence  did  not  work  with 
equal  power.  Britain  had  indeed  been  a  province  of  the 
empire,  but  even  at  the  height  of  the  Roman  domination 
was  in  a  far  difi'erent  condition  from  the  provinces  of  the 
continent.  But  in  the  interval  between  the  abandonment 
of  the  island  to  the  natives  by  the  withdrawal  of  the  legions 
and  governors,  and  the  completed  invasion  of  the  Angles 
and  Saxons,  the  vestiges  of  the  Eoman  policy  and  laws  had 
been  nearly  swept  away  by  the  continual  wars  between  the 
Britons  and  the  wild  tribes  of  the  North.  The  Saxons 
were  met  by  the  institutions  of  the  Keltic  races,  somewhat 
modified  without  doubt  by  generations  of  contact  with 
their  foreign  rulers  ;  but  the  Boman  element  was  not  suffi- 
ciently powerful  and  concentrated  to  warp  the  develop- 
ment of  the  pure  Saxon  ideas  in  their  natural  order.  The 
Franks,  Lombards  and  other  barbarian  nations,  on  the  con- 
trary, met  the  Boman  laws  and  institutions  existing  in  full 
force,  and,  although  at  first  overwhelming  them  by  their 
rude  violence,  yet  finally  yielded  to  their  inherent  and  vital 
power.  Thus  in  England  we  have  the  jury  trial  as  the  fruit 
of  the  ancient  German  assemblages  of  freemen  in  the  courts ; 
on  the  continent  the  same  seed  has  produced  a  growth  of  a 
far  different  form,  perpetuating  the  ideas  and  policy  of  the 
later  Boman  emperors. 

§  118,  I  shall  now,  in  a  summary  way,  describe  the 
process  of  the  development  from  the  ancient  district  courts 
of  the  Anglo-Saxons,  when  the  mass  of  the  freemen  assem- 
bled and  gave  judgment,  to  the  .final  establishment  of  the 
present  jury  trial.  These  two  extremes  are  clear  and  un- 
mistakable ;  the  interval  is  more  vague  and  uncertain. 
The  various  stages  or  steps  of  the  progress  are  not  sharply 
defined  and  distinguished  from  each  other.  As  a  natural 
consequence  of  an  unsettled  and  even  turbulent  society, 
with  a  ■'political  organization  divided  into  semi-independent 
shires  or  counties  and  smaller  districts,  without  an  over- 
whelming central  power  in  king  or  legislature  to  prescribe 


70  THE    UNWKirrEN    LAW. 

common  laws  for  the  whole  people,  we  shall  find  different 
forms  of  judicial  procedure  coexisting  and  combined.  The 
old  court  of  freemen  will  be  associated  with  more  restricted 
bodies  of  men  who  actually  decide  the  questions  at  issue, 
and  will  not  disappear  until  even  a  third  period  of  the  de- 
velopment has  been  readied.  The  general  continuity  is 
also  broken  by  the  use  of  the  ordeal  of  hot  water  and  hot 
iron,  and  the  wager  of  battle  or  personal  duel,  and  other 
methods  of  appealing  to  the  supposed  interference  of  Provi- 
dence introduced  by  the  deep  religious  feelings  of  the  times. 
Although  I  shall  not  be  able  accurately  to  mark  the  pro- 
gressive steps,  and  point  out  the  period  when  one  ceased 
and  the  next  began,  yet  the  general  order  of  progress  is 
sufficiently  clear.  When  the  jmy  trial  actually  began  can- 
not be  stated  ;  but  the  transitions  which  prepared  the  way 
and  finally  ended  in  the  perfected  institution  may  be  col- 
lected from  the  documents,  chronicles,  and  records  pre- 
served to  our  own  times. 

§  119.  In  sui'veyiug  the  state  of  society  and  civilization 
among  the  German  nations,  we  discover  an  important  idea 
that  seems  to  have  been  common  to  them  all — the  personal 
trust  which  was  reposed  in  families  and  communities  for 
the  good  behavior  and  character  of  their  members,  and  the 
great  reliance  which  was  placed  in  the  voluntary  oaths  of 
freemen.  This  idea  found  its  full  development  among  the 
Saxons  in  the  institution  of  Frank  Pledge,  which  Anil  be 
more  fully  described  in  the  sequel.  It  was  also  the  basis 
of  a  species  of  procedure  in  judicial  trials,  which  formed  the 
first  step  toward  the  modern  jury.  As  the  primitive  col- 
lections of  Germanic  laws  are  almost  entirely  occupied  with 
the  definition  and  punishment  of  crimes,  we  shall  find  that 
most  of  the  illustrations  of  our  subject  are  connected  with 
criminal  or  quasi  criminal  trials. 

§  120.  According  to  the  Salic  and  Ripuarian  codes  of 
the  Franks,  which  were  composed  at  least  before  the  eighth 
century,  when  an  offender  was  summoned  before  the  court 


CUSTOM   OF   COMPURGATION.  Yl 

of  freemen,  the  questions  of  fact  were  rarely  established  by 
the  testimony  of  any  witnesses  cognizant  of  the  events. 
The  ordeal  of  hot  water  or  iron,  or  the  judicial  combat,  was 
sometimes  resorted  to,  but  the  ordinary  method  of  deter- 
mining the  question  of  guilt  or  innocence  was  by  the  oaths 
of  Gonjuratores  or  coinpurgators.  The  defendant  was  sum- 
moned to  bring  with  him  his  relations  or  neighbors,  vary- 
ing in  number  according  to  the  degree  of  the  offence,  and 
perhaps  the  value  of  the  property,  from  six,  eight,  nine, 
twelve,  fifty,  seventy-two,  to  one  hundred,  who  with  the 
party  himself  should  make  solemn  oath  that  he  had  not 
done  the  thing  charged  upon  him.  The  complainant  might 
rebut  this  defence  by  bringing  forward  a  like  number  of 
his  friends  or  neighbors,  who  by  their  oaths  supported  the 
charge.  These  compurgators  were  not  witnesses,  for  they 
might  know  nothing  of  the  facts,  nor  were  they  a  jury,  for 
they  had  no  evidence  laid  before  .them  except,  perhaps,  the 
assertions  of  the  person  whom  they  sustained.  Their  only 
knowledge  was  of  his  character,  and  they  based  their  oaths 
upon  a  conviction,  from  their  acquaintance  with  him,  of  the 
probability  or  improbability  of  his  having  committed  the 
wrong,  or  brought  a  false  charge. 

§  121.  The  same  custom  was  common  among  the  Anglo 
Saxons,  and  was  recognized  in  several  of  the  codes  of  laws 
enacted  by  their  kings.  Thus  the  laws  of  Alfred  provided 
that  a  king's  thane  accused  of  homicide  should  purge  him- 
self by  the  oath  of  twelve  king's  thanes,  and  that  a  thane 
of  less  rank  should  rely  upon  the  oaths  of  eleven  of  his 
equals,  and  one  king's  thane.  In  another  code  it  was  or- 
dered that  a  king's  thane  accused  of  heathenish  practices 
should  purge  himself  by  the  oaths  of  thirty-six  compur- 
gators. Other  charges  were  met  by  a  less  number.  The 
value  or  relative  effect  of  an  oath  varied  with  the  rank  of 
the  compurgator, 

§  122.  This  is  the  first  step,  and  it  is  only  a  step  toward 
the  jury.    Some  writers,  and  among  them,  Mr.  Sharon  Tur- 


72  THE   UNWRITTEN    LAW. 

ner,  see  in  these  customs,  tlie  jury  already  organized  and  at 
work  ;  they  suppose  that  these  conjui'ators  were  chosen  per- 
sons, who  possessed  the  functions  of  veritable  triers,  hearing 
and  weighing  the  evidence  of  the  parties.  But  a  reference 
to  the  kindred  institutions  of  the  affiliated  tribes  on  the 
continent  shows  this  theory  to  be  untrue.  The  custom 
operated  to  transfer  the  decision  from  the  court  of  freemen 
to  the  twelve,  or  more  or  less  compurgators,  for  the  collec- 
tive oath  of  these  latter,  made  upon  their  own  responsibility, 
had  the  effect  to  end  a  dispute,  and  the  court  only  affirmed 
the  result  of  their  action. 

§  123.  How  long  this  method  prevailed,  it  is  impossible 
to  determine  with  accuracy.  It  doubtless  existed  side  by 
side,  or  in  connection  with  the  next  transition,  which  I  shall 
soon  describe.  I  think  that  there  is  no  satisfactory  evidence 
of  anything  like  our  present  jury  trial  at  the  time  of  the 
Norman  conquest.  Mr.  S.  Turner  assumes  that  it  was  fully 
developed  at  that  epoch,  and  some  other  writers  hold  the 
same  opinion,  but  the  weight  of  modern  authority  is  against 
this  supposition.  The  case  upon  which  Mr.  Turner  relies, 
may,  I  think,  be  completely  explained  by  a  reference  to  the 
custom  of  conjurators,  or  of  recognitors,  which  was  the  suc- 
ceeding stage  of  the  development.  That  case  is,  briefly,  as 
follows  :  In  the  reign  of  William  the  Conqueror,  there  was 
a  dispute  whether  some  land  belonged  to  the  church  or  to 
the  king.  The  freemen  of  tlie  county  were  summoned  into 
their  court  to  try  this  question.  This  court,  overawed  by 
the  king's  officer,  the  sheriff,  decided  that  the  land  was  the 
property  of  the  crown.  The  presiding  bishop  was  dissatis- 
fied yrith  the  result,  and  ordered  that  they  should  choose 
from  their  number  twelve  men,  who  should  confirm  with 
their  oath  what  liad  been  declared.  Tliese  also,  being  sub- 
orned by  the  sheriff,  made  oath  that  the  land  was  the 
king's.  They  afterwards  confessed  that  they  had  forsworn 
themselves,  and  were  condemned  for  perjury.  Mr.  Turner 
discovers  m  these  twelve  men  a  true  jury,  who  heard  the 


mTKODUCTION  OF  BECOGNITORS.  73 

evidence  laid  before  them,  and  decided  falsely  upon  it.  I 
think,  on  the  contrary,  that  we  have  in  this  story,  only  the 
usual  compurgators,  who  were  called  upon  to  sustain  the 
action  of  the  court  by  oaths  made  upon  their  own  responsi- 
bility, and  therein  committed  perjury,  as  was  probably 
often  the  case  ;  or  they  were  recognitors,  or  persons  who 
assumed  to  decide  from  their  own  personal  knowledge,  as  I 
shall  soon  explain  in  detaiL  The  only  point  of  analogy 
between  many  of  these  cases  and  the  modern  jury  lies  in 
the  use  of  the  number  twelve.  This  number,  or  some  mul- 
tiple of  it,  constantly  appears  in  the  Anglo  Saxon  customs, 
and  may  be  traced  in  the  laws  of  the  continental  nations. 

§  124.  The  practice  of  relying  upon  the  oaths  of  com- 
purgators, unsupported  by  any  evidence,  and  founded  upon 
no  knowledge  of  the  facts,  could  only  exist  in  a  very  rude 
state  of  society.  Its  basis  was  an  unbounded  confidence  in 
personal  integrity,  and  it  must  have  inevitably  i^roduced  a 
vast  amount  of  perjury.  This  liability  of  the  ends  of  justice 
to  be  defeated  by  gross  perjury,  together  with  the  cumbrous 
working  of  the  unwieldy  and  often  tumultuous  courts  of  the 
Shire,  and  Hundred,  must  have  been  the  efficient  cause  of 
the  transition  which  followed  next  in  chronological  order. 
Still,  as  before  stated,  it  is  impossible  to  separate  clearly 
and  sharply  this  new  institution  from  the  simple  court  of 
freemen,  and  from  the  use  of  compurgators.  All  three  went 
on  together,  although  the  new  invention,  which  was  a  nearer 
approach  to  the  jury,  outlived  the  other  two,  and  has,  in- 
deed, in  some  of  its  elements,  been  retained  into  quite  mod- 
ern times. 

§  125.  This  second  transition  consisted  in  the  delegation, 
by  the  courts  of  freemen  or  their  president,  of  the  power 
and  duty  to  decide  in  a  particular  case,  to  a  limited  num- 
ber of  freemen  selected  from  the  district,  and  this  number 
was  generally  twelve  or  some  multiple  of  twelve.  This 
delegated  body  did  not  act  without  knowledge  of  the  facts 
ii^volved  in  the  dispute,  but  still  they  heard  no  evidence  or 


74  THE   UNWKITTEX   LAW. 

argument.  They  decided  entirely  upon  their  own  personal 
knowledge  and  information.  In  the  selection  of  these  per- 
sons, who  were  called  recognitors,  care  was  taken  that  they 
should  he  acquainted  with  the  circumstances  of  the  case, 
with  the  litigant  parties,  with  the  situation  and  ownership 
of  the  disputed  property.  They  were,  therefore,  invariably 
chosen  from  the  immediate  vicinity  of  the  parties  or  of  the 
land  in  question.  In  doubtful  cases  they  were  strictly 
examined  to  discover  the  amount  and  sources  of  their 
knowledge.  "When  appointed,  they  beard  no  evidence  or 
allegations,  but  retired  apart,  and  by  comparing  their  pre- 
vious inforaiation,  whether  acquired  by  sight  of  the  occur- 
rences, or  by  tradition  in  the  vicinage,  or  by  any  other 
means,  they  rendered  their  decision  or  verdict,  vere  dictum^ 
upon  oath.  As  they  assumed  to  speak  upon  oath,  from 
their  own  personal  knowledge,  they  were  liable  to  the  pen- 
alties of  peijury  if  they  returned  a  false  verdict. 

§  126.  When  this  innovation  was  first  made,  cannot  be 
accurately  told.  Mr.  Hallam  is  of  opinion  that  it  was  intro- 
duced by  the  Noi-mans.  It  was  a  long  advance  from  the 
primitive  courts,  and  the  use  of  oaths  based  upon  the  per- 
sonal characters  of  the  litigant  parties,  toward  the  trial  by 
jury.  It  was  an  undeveloped  jury ;  the  germ  had  sprouted, 
and  the  possible  jury  lay  enfolded  in  the  bud.  The  un- 
wieldy court  of  freemen  was  replaced  by  a  tribunal  of  a  lim- 
ited and  definite  number.  These  twelve  triers  acted  upon 
some  cognizance  of  the  fiicts  involved  in  the  dispute,  but 
they  derived  that  information  from  themselves ;  they  were, 
indeed,  a  jury  of  witnesses  testifying  to  each  other. 

§  127.  All  the  subsequent  steps  in  the  progress  consisted 
in  devices  to  aid  this  body  of  the  freemen  of  the  vicinage 
by  the  testimony  of  other  persons  not  included  in  their 
number.  When  the  divorce  was  eflfected  between  those 
acquainted  with  the  matter  in  contest,  aud  those  appointed 
to  decide  upon  it,  the  jury  trial  was  essentially  complete. 

§  128.  A  modification  of  the  simple  institution  of  recog 


PKOGRESS  TOWARD  THE  MODERN  JURY.         75 

nitors  was  soon  made  by  allowing  them  in  certain  cases,  not 
only  to  speak  from  their  own  knowledge,  or  from  tradition, 
but  also  to  search  for  evidence  and  information  from  others, 
although  as  yet  none  was  formally  offered  to  them. 

§  129.  In  the  reign  of  Henry  III.  (a.  d.,  1216-1270),  an 
important  innovation  was  made  by  joining  witnesses  with 
recognitors  in  one  body.  This  was  done  to  give  those  sum- 
moned from  the  vicinage  the  help  of  others  who  could  tes- 
tify to  the  facts,  and  all  together  united  in  making  the 
verdict. 

§  130.  In  the  twenty-third  year  of  Edward  III.  (a.  d., 
1350),  witnesses  appear  merely  connected  with  or  adjoined 
to  the  recognitors,  who  gave  them  the  aid  of  their  testi- 
mony, but  took  no  part  in  the  decision.  This  modification 
was  the  commencement  of  the  practice  of  formally  intro- 
ducing evidence  to  the  jury  from  persons  who  did  not  com- 
pose it,  and  in  the  opinion  of  Mr.  Starkie  and  of  Mr.  Spence 
it  is  the  connecting  link  between  the  ancient  and  the  mod- 
em jury  trial. 

§  131.  The  innovation  once  made,  the  progress  was 
rapid ;  and  the  recognitors  were  more  and  more  aided  by 
the  testimony  of  witnesses,  but  their  evidence  was  liable  to 
be  irregular  and  improper,  as  it  was  subject  to  little  or  no 
control  from  the  judges.  At  length,  in  the  reign  of  Henry 
IV.,  another  very  important  change  was  effected,  and  all 
the  evidence  was  required  to  be  publicly  given  to  the  jury 
in  the  presence  of  the  court,  so  that  the  judges  might  con- 
trol the  proceedings,  and  reject  such  proofs  as  were  im- 
proper. This  innovation  at  once  produced  that  high  dra- 
matic character  which  attends  a  jury  trial  in  English  and 
American  courts  ;  it  afforded  scope  for  the  exhibition  of  the 
skill  and  acumen  of  counsel,  and  opportunity  for  those 
forensic  contests  which  preeminently  distinguish  our  tri- 
bunals.'' 

§  132.  We  have  now  almost  reached  the  present  jury 
trial.  ,  Yet  the  rule  still  prevailed  of  summoning  the  jurors 


76  THE   UNWRITTEN   LAW. 

from  the  vicinage,  so  that  they  should  he  acquainted  with 
the  parties,  the  property,  and  the  circumstances  of  the  cause. 
However  necessary  this  might  be  when  the  jurymen  were 
mere  recognitors,  it  was  a  jarring  element  when  the  greater 
reliance  was  placed  upon  the  testimony  of  Avitnesses.  The 
local  prejudices  and  imperfect  knowledge  of  the  triers  would 
interfere  and  prevent  them  from  giving  due  weight  to  the 
evidence  offered  in  oj)en  court,  and  thus  the  very  facts 
which  were  of  essential  importance  in  the  ancient  form  of 
the  institution,  became  serious  drawbacks  to  the  action  of 
the  jury  in  its  final  stage  of  development.  Numerous  par- 
tial changes  were  made  from  time  to  time,  until  by  statutes 
in  the  reigns  of  Anne,  and  of  George  II.,  the  rule  requu'ing 
the  jurors  to  be  summoned  from  the  vicinage  was  abolished, 
and  the  selection  was  directed  to  be  made  from  the  county 
at  large.  And  by  a  decision  of  the  com't  of  King's  Bench, 
it  was  declared  that  if  a  jury  gave  a  verdict  upon  their  own 
private  knowledge,  it  was  an  error ;  that  they  ought  to  have 
informed  the  court,  so  that  they  might  have  been  sworn  as 
witnesses.  This  brought  trial  by  jury  to  its  present  per- 
fected condition.  As  anciently  a  most  careful  scratiny  was 
made  to  select  such  men  only  as  were  familiar  with  the 
parties  and  the  facts,  the  endeavor  is  now  equally  strenuous 
to  obtain  such  alone  as  are  absolutely  unacquainted  %vith 
the  parties  and  the  circumstances  of  the  case,  such  as  shall 
stand  unbiassed  by  any  preconceived  opinions  and  prejudices. 
§  133.  From  this  review  it  is  plain  that  the  trial  by  jm-y 
cannot  be  ascribed  to  any  particular  epoch  or  legislator.  It 
was  not  entirely  of  Saxon  origin,  and  much  less  was  it  an 
invention  of  Alfred.  Commencing  with  the  freemen's  courts 
of  the  ancient  Saxon  as  its  germ,  it  has  developed  through 
many  transitions,  until  finally,  and  in  comparatively  mod- 
ern times,  it  presents  its  two  distinctive  elements,  the  strict 
separation  of  the  law  and  the  facts  which  characterized  the 
old  Roman  procedure,  and  the  admission  of  the  people  at 
large  to  the  decision  of  causes,  which  distinguished  the 


MODEKN   JURIES.  77 

Anglo  Saxon  aud  other  Germanic  courts.  I  do  not  suggest 
that  the  former  of  these  elements  was  actually  borrowed  by 
the  English  from  the  Roman  jurisprudence.  Such  a  suppo- 
sition would  be  in  the  highest  degree  improbable.  All  that 
was  known  of  that  system  during  the  period  of  the  growth 
of  the  jury,  was  confined  to  the  final  codes  which  closed  the 
history  of  that  law,  and  these  compilations  recognized  such 
courts  alone  as  were  composed  of  magistrates.  ITor  can  this 
feature  be  ascribed  to  the  Saxons,  for  with  them  all  ques- 
tions, both  of  law  and  facts,  were  committed  to  the  same 
persons.  This  element,  as  it  exists  in  our  jury,  was  rather 
the  result  of  a  necessity,  growing  out  from  the  constantly 
increasing  scope,  extent,  and  intricacy  of  the  law.  As  the 
people  at  large  could  not  be  skilled  in  the  details  of  juris- 
prudence, that  branch  of  a  legal  controversy  embracing  the 
principles  and  rules  of  the  science,  was  at  length  confided 
to  trained,  professional  judges.  Thus  while  the  considera- 
tion of  the  law  was  withdrawn  from  the  jury,  that  of  the 
facts  was  left  to  them,  and  the  division  of  the  subjects  was 
eJBfected. 

§  134.  The  details  of  the  organization  of  juries  in  Eng- 
land and  America  are  regulated  by  statutes,  and  vary  some- 
what in  difterent  states.  The  essential  features  of  the  sys- 
tem are,  however,  the  same.  From  a  large  class  of  the 
responsible  citizens  of  a  county,  including,  perhaps,  the  free- 
holders or  taxpayers,  the  sheriff  chooses  by  lot  a  certain 
number,  and  summons  them  to  attend  upon  the  court. 
When  any  particular  cause  is  to  be  tried,  twelve  persons 
are  drawn  by  lot  from  the  entire  list  summoned  and  in 
attendance,  who  are  sworn  to  give  a  true  verdict  between 
the  parties,  and  act  as  the  jurors  in  the  case.  Ample  pow- 
ers are  given  to  the  parties  in  both  civil  and  criminal  trials 
to  object  to  any  juryman,  who,  either  from  personal  preju- 
dice or  enmity,  or  from  a  previous  knowledge  and  opinion 
of  the  facts  of  the  case,  would  be  deemed  incompetent  to 
act  impartially.     This  power  is  exercised  by  open  and  pub- 


78  THE   UNWRITTEN    LAW. 

lie  challenges,  wbicli  state  the  grounds  of  the  objection,  and 
when  once  interposed  thej  must  be  determined  before  the 
person  is  accepted  or  rejected.  In  criminal  cases,  from  a 
tender  regard  for  the  liberty  or  life  of  a  citizen,  the  prisoner 
is  entitled  to  a  certain  number  of  peremptory  challeuges, 
which  absolutely  exclude  the  proj)osed  juryman,  without 
the  assignment  of  any  cause  of  exception  to  him.  The 
number  of  these  challenges  varies  with  the  degree  of  the 
crime,  and  is  regulated  by  statute. 

§  135.  One  feature  of  this  method  of  trial  merits  special 
attention  ;  that  which  requires  the  jury  to  be  mianimous  in 
rendering  their  verdict.  This  has  a  purely  historic  origin. 
The  ancient  Saxon  courts  decided  by  a  majority  of  votes, 
but  when  the  practice  of  terminating  disputes  by  the  con- 
senting oaths  of  compurgators  was  introduced,  the  very 
nature  of  the  institution  required  that  the  persons  pre- 
sented by  a  party  to  purge  or  support  him  should  be  unan- 
imous. Naturally  the  same  rule  obtained  when  these  com- 
purgators were  replaced  by  recognitors,  although  the  reason 
for  the  provision  no  longer  existed.  The  principle  once 
adopted  has  continued  as  an  essential  part  of  the  jury  trial, 
successfully  resisting  all  attempts  at  a  change.  The  force 
of  the  argument  against  the  j^ractice  of  requiring  unan- 
imity in  juries  is  overwhelming ;  no  other  deliberative 
bodies,  whether  legislative  or  judicial,  follow  it,  and  stren- 
uous endeavors  have  been  made  by  the  best  judicial  writers 
in  England  to  bring-  this  national  institution  into  a  con- 
formity with  reason  and  good  sense  in  this  particular,  but 
as  yet  all  attempts  at  a  reform  have  proved  unavailing. 

§  136.  Of  the  merits  of  the  trial  by  jury  as  now  admin- 
istered, compared  with,  that  system  which  commits  all  ques- 
tions of  law  and  of  fact  to  a  court  of  professional  judges,  I 
do  not  purpose  to  speak  at  large.  English  and  American 
writers  have  generally  lauded  the  institution  as  the  bulwark 
of  English  liberties,  as  an  invincible  barrier  against  the  en- 
croachments of  arbitrary  power.     Yet  it  would  be  difficult 


BENEFITS    OF   THE   JURY   TEIAL.  79 

to  point  to  any  important  occasion  in  English  history,  prior 
to  the  memorable  trial  of  the  seven  bishops,  where  a  jury 
has  successfully  resisted  the  most  violent  demands  of  the 
govei-nment  in  state  prosecutions.  They  have  generally, 
almost  uniformly,  been  the  passive  instrument  in  the  hands 
of  judges  and  prosecuting  officers,  and  have  blindly  regis- 
tered their  decrees.  In  the  case  referred  to,  the  jury  was 
sustained  by  the  sanctity  of  the  defendants,  and  the  over- 
whelming and  altogether  unprecedented  pressure  from 
church  and  people  of  all  classes,  incensed  against  a  king 
and  court  deservedly  detested.  It  should  be  remembered 
that  many  of  the  noblest  Englishmen  who  have  innocently 
perished  as  the  victims  of  partisan  hatred,  and  tyrannical 
revenge,  have  been  condemned  by  the  verdict  of  a  jury. 
Still  while  the  jury  trial  lasts,  the  people  have  in  their  own 
hands  the  jpower  of  opposing  the  encroachments  of  govern- 
ment upon  their  liberties,  and  of  controlling  the  trial  and 
condemnation  of  criminals  of  every  description.  It  cannot 
be  supposed  that  this  power  will  ever  be  voluntarily  re- 
signed. 

§  137.  One  marked  benefit  of  the  system,  which  has 
done  much  to  distinguish  English  and  American  civiliza- 
tion from  that  of  other  countries  is,  that  it  afiords  a  school 
for  the  more  intelligent  and  responsible  citizens  in  the  prin- 
ciples and  details  of  the  municipal  law.  The  effect  upon 
the  people  at  large,  of  tlie  instructions  from  learned  judges 
to  the  assembled  juries  from  year  to  year,  and  from  genera- 
tion to  generation,  cannot  be  too  highly  estimated.  No 
other  means,  in  fact,  are  provided  for  communicating  to  the 
great  body  of  the  people  any  knowledge  of  the  rules  of  the 
civil  and  criminal  law,  and  of  their  practical  working  in 
controlling  the  daily  business  of  life. 

§  138.  Yet  in  England  and  America  a  growing  disposi- 
tion is/  evident  to  neglect  the  jury  trial  in  civil  causes,  and 
to  resort  to  other  methods  of  deciding  legal  controversies. 
Late  English  statutes  permit  many  classes  of  cases  in  the 


80  THE   UNWRITTEN   LAW. 

higher  courts  to  be  submitted  by  the  parties  to  the  judge, 
or  to  referees  or  arbiters,  and  in  the  new  county  courts, 
where  a  jury  is  optional,  it  is  found  that  the  great  majority 
of  cases  are  tried  without  one.  In  America  the  same  dis- 
trust is  shown  by  similar  provisions  of  statutes  allowing 
judges  and  referees  to  be  substituted  for  the  old  common 
law  triers. 

§  139.  The  trial  by  jury  is  so  completely  a  part  of  our 
judicial  and  governmental  policy,  that  it  is  difficult  for  us 
to  conceive  of  a  society  which  has  reached  an  advanced 
state  of  civilization  without  it.  Yet  the  most  enlightened 
nations  of  the  European  continent  have  little  or  nothing  of 
the  jury,  and  whatever  some  of  them  possess  has  been 
recently  introduced,  and  is  exceptional  to  the  general 
course  of  their  institutions.  In  1791,  ^e  Convention  estab- 
lished the  jury  trial  in  France,  and  it  is  still  retained  in 
criminal  cases.  It  is,  however,  only  a  modification  of  the 
English  jury.  The  government  substantially  controls  the 
choice  of  its  members.  The  jurors  are  twelve  in  number, 
and  a  majority  determine  the  decision.  Some  other  coun- 
tries have  followed  the  example  of  France,  and  partially 
adopted  the  jury. 

SECTION  III. 

TOE    ORIGIN,  HISTORY,  AND   JURISDICTION    OF   THE    ENGLISH    AND   AMERICAN 
JUDICIARY. 

§  140.  Having  sketched  the  birth,  growth,  and  maturity 
of  the  jury  trial,  I  shall  now  in  a  general  manner  describe 
those  judicial  tribunals  which  have  been  the  chief  instru- 
ments through  which  the  unwritten  law  has  been  called 
into  being.  These  courts,  like  the  jury,  had  an  institutional 
origin,  although  they  have  been  frequently  and  to  an  im- 
portant degree  remodelled  by  the  supreme  legislative  and 
executive  power  in  the  state.  Looking  at  the  judicial  insti- 
tutions of  the  present  day,  we  see  them  separated  by  a  plain 
line  of  division  into  two  classes  ;  those  in  which  the  jury  is 


THE    SUPEKIOR   LAW   COUKTS.  81 

an  essential  part,  and  those  in, which  it  is  not  used.  From 
our  review  of  the  history  of  the  trial  by  jury,  we  shall  easily 
perceive  that  the  courts  of  the  former  class  are  the  elder 
and  the  superior,  and  that  they  reflect  in  the  most  perfect 
manner  the  peculiar  ideas  of  English  jurisprudence.  The 
others,  althougii  very  ancient,  and  exercising  jurisdiction 
over  very  important  subjects,  sprang  up  to  meet  peculiar 
exigencies,  or  to  supply  deficiencies  in  the  more  national 
system  of  jury  courts.  In  the  further  consideration  of  the 
subject  of  this  section,  I  shall  proceed  to  sketcli  the  origin 
and  history  of  the  superior  law  courts  of  England,  and 
then  to  show  how  the  American  States  and  the  Federal 
Government  have  adopted  the  essential  features  of  the 
system. 

I.  Of  the  superior  Law  Courts,  or  those  which  employ  the 
jury  as  apart  of  their  regular  organization. 

§  141.  The  germinal  idea  of  the  Anglo  Saxon  polity  was 
that  of  local  self-government,  and  this  was  shared  in  a  great 
measure  by  the  other  Germanic  nations  on  the  Continent. 
In  the  time  of  Alfred,  their  institutions  were  definitely  set- 
tled, although  they  are  not  to  be  ascribed  to  the  inventive 
genius  of  that  monarch,  as  has  been  done  by  many  writers, 
but  they  were  the  natural  products  of  more  ancient 
ethnic  principles.  In  his  time  the  country  had  been  di- 
vided into  several  counties  or  shires,  and  these  were  again 
subdivided  into  hundreds  and  burgs.  To  each  of  these 
divisions  there  were  appropriate  courts.  The  county  court, 
or  shire  gemote  was  regularly  held  twice  in  each  year ;  was 
presided  over  by  the  ealdorman  or  chief  officer  of  the 
county  and  by  a  bishop,  and  was  composed  of  the  freemen 
or  thanes  of  the  district.  The  burg  gemotes  were  held  in 
each  burg  thrice  in  a  year,  and  the  hundred  gemotes  were 
convened  every  month.  Tliese  latter  were  under  the  pres- 
idency sometimes  of  the  ealdorman,  sometimes  of  the  gerefa 
of  the  county,  an  executive  ofiScer  subordinate  to  the  ealdor- 
6 


82  THE   UNWRITTEN   LAW. 

man.  All  these  had  similar  jurisdiction  over  matters  civil 
and  criminal,  and  thej  even  took  cognizance  of  questions 
purely  ecclesiastical,  not  those,  indeed,  touching  the  doc- 
trines of  religion,  but  those  involving  ecclesiastics  and  their 
property.  The  methods  of  organization  and  procedure  in 
these  simple  courts  were  all  the  same,  and  have  been  suffi- 
ciently explained  in  the  preceding  section.  Whether  there 
was  any  appeal  from  the  hundi'ed  and  burg  courts  to  those 
of  the  county  does  not  appear,  yet  the  latter  were  the  most 
important  tribunals,  and  cases  of  importance  were  brought 
in  them,  and  were  often  adjourned  thither  from  the 
others. 

§  142.  Although  these  local  com*ts  continued  for  some 
considerable  time  after  the  l^orman  conquest,  yet  they  gi'ad- 
ually  ceased  to  exist,  or  to  exert  any  controlling  influence 
on  the  nation.  "While  these  regular  and  stated  assemblages 
of  the  free  citizens  for  the  discussion  and  transaction  of  local 
affairs  have  disappeared  from  England,  they  have  been  per- 
petuated in  all  of  their  essential  featm*es  except  the  judicial, 
in  some  of  the  American  States.  •  The  town  meetings  of 
Kew  England  and  ISTew  York,  and  probably  of  other  States, 
certainly  represent  the  Saxon  idea  of  local  self-government. 
These  stated  convocations  of  the  citizens  of  the  little  com- 
munities to  regulate  their  own  affairs,  those  which  lie  near- 
est about  them,  present  a  strong  analogy  to  the  primitive 
hundred  gemotes,  which  were  in  fact,  legislatiA^e  as  well  as 
judicial. 

§  143.  Besides  these  regular  tribunals,  the  king's  thanes, 
bishops,  abbots,  and  other  dignitaries  who  possessed  large 
landed  estates,  called  manors,  had  certain  private  or  manor 
courts,  as  a  part  of  their  rights  as  proprietors.  The  presid- 
ing oflicer  in  them  was  the  lord's  bailiff,  and  the  judges  or 
peers,  were  the  free  tenants.  This  species  of  courts  increased 
in  power  and  importance  during  the  supremacy  of  the  feu- 
dal organization,  and  was  continued  after  the  Norman  con- 
quest, even  leaving  some  traces  behind  to  the  present  day, 


THE   king's    council   OF   THE    SAXONS.  83 

but  it  never  seems  to  have  attained  tlie  rank  in  England 
wliicli  it  readied  on  the  Continent. 

§  144.  None  of  these  several  classes  of  tribunals  was  the 
parent  of  the  superior  courts  of  law  of  England.  We  must 
look  for  the  germ  of  these  in  the  king's  court  or  council  of 
the  Saxons,  which  was  composed  of  the  superior  orders  of 
king's  thanes,  together  with  the  higher  ecclesiastics,  arch- 
bishops, bishops,  and  abbots.  These  persons  were  called 
the  witan  or  wise,  in  Latin  they  were  often  denominated 
Principes  or  Optimates.  There  appear  to  have  been  in  fact 
two  councils.  A  certain  number  of  advisers  exalted  in  sta- 
tion always  attended  the  person  of  the  king,  and  formed  the 
select  council.  More  solemn  assemblies,  composed  of  a 
greater  number  of  the  optimates,  were  convoked  under  the 
name  of  \wtena  gemote,  or  court  of  the  wise.  When  as- 
sembled during  the  lifetime  of  the  king,  this  coimcil  was 
presided  over  by  the  monarch.  Its  duties  were  legislative 
and  judicial.  As  the  depositary  of  the  one  power,  it  has 
grown  to  be  the  English  Parliament ;  as  possessing  the  lat- 
ter jurisdiction  it  has  resulted  in  the  superior  courts  of  the 
law.  In  the  exercise  of  one  class  of  functions,  it  assisted  or 
advised  the  king  in  framing  laws ;  it  confirmed  grants  of 
public  lands  ;  it  elected  a  king  at  the  death  of  the  reigning 
monarch.  As  a  court  of  justice  this  king's  council,  whether 
special  or  general,  was  the  only  tril^unal  in  which  disputes 
between  the  king  and  his  thanes,  or  among  the  latter  them- 
selves, could  be  considered  and  decided.  Powerful  crim- 
inals, who  would  overawe  the  free  judges  of  the  local  courts 
were  also  tried  here.  At  length  it  became  the  court  of  ap- 
peal from  the  county  and  hundred  gemotes.  During  the 
Saxon  rule,  the  council  contained  no  special  or  professional 
judges.  The  bishops  and  other  ecclesiastics,  who  composed 
a  portion  of  its  members,  since  they  possessed  all  the  learn- 
ing and  skill,  as  well  in  jurisprudence  as  in  science  and 
letters,  were  doubtL3ss  the  principal  advisers  upon  the  law. 


84  THE   UNWKrrTEN   LAW. 

All  of  these  coui-ts  contained,  as  au  essential  element,  the 
germ  which  grew  into  the  jury  trial. 

§  145.  This  was  the  state  of  the  judicial  institutions  of 
England  at  the  time  of  the  conquest  (a.  d.,  1072).  The  Nor- 
mans introduced  into  the  civil  polity  of  the  kingdom  the 
princij)le  of  the  complete  supremacy  of  the  central  govern- 
ment, which  was  wrought  out  under  the  ideas  of  feudalism, 
the  king  being  considered  as  the  supreme  head  of  the  na- 
tion, whence  his  vassals  derived  not  only  their  property,  but 
all  other  lights.  In  theory  he  was  the  source  of  legislation 
and  of  justice.  In  actual  practice  this  doctrine  was,  per- 
haps, never  fully  realized,  but  the  courts  were  constructed 
upon  it.  These  changes  were  not  made  at  once  by  William 
I.,  but  were  begun  by  him  and  continued  by  his  immediate 
successors.  The  result  was  that  the  king's  court  or  council 
gradually  drew  to  itself  by  far  the  greater  part  of  the  judi 
cial  business  of  the  kingdom,  and,  to  accommodate  itself  to 
this  increase,  was  changed  in  form  from  time  to  time,  until, 
during  the  reign  of  Edward  I,  the  superior  law  courts  had 
become  organized  substantially  as  they  have  continued  to 
the  present  day. 

§  146.  During  the  reign  of  William  I.  (a.  d.,  1072-1087), 
the  local  Saxon  courts  remained  as  they  had  been  left  by 
the  old  dynasty,  with  the  exception  that  the  sheriff  or  vice 
count  of  the  county  presided,  instead  of  the  ealdorman. 
But  in  the  king's  council  or  court,  an  important  modifica- 
tion or  addition  was  made.  William  appointed  a  chief  jus- 
ticiary as  its  first  judicial  officer,  who  was,  by  virtue  of  his 
i:)Osition,  one  of  the  principal  advisers  of  the  crown  and 
viceroy.  He  was  generally  an  ecclesiastic.  Such  was  the 
commencement  in  England  of  a  class  of  professional  judges. 
Another  innovation  made  by  William,  removed  the  juris- 
diction over  ecclesiastical  subjects  from  the  district  courts, 
and  confined  it  to  the  bishop  in  each  diocese.  From  thia 
reform  have  sprung  those  tribunals,  which  in  England,  and 
some  of  the  United  States,  have  control  over  the  settlement 


INNOVATIONS    OF   THE   NORMAN   KINGS.  85 

of  the  estates  of  deceased  persons,  and,  in  England,  over 
questions  of  church  discipKne  and  property.  The  king's 
council,  or  curia  regis,  still  preserved  its  legislative  and 
judicial  functions,  united  in  the  same  body,  nor  were  they 
finally  separated  until  the  reign  of  Henry  II.  (a.  d.,  1216- 
1270).  It  is  probable,  however,  that,  in  the  natural  course 
of  events,  the  business  of  adjudicating  upon  legal  contro- 
versies fell  into  the  hands  of  a  few  of  the  most  influential 
and  capable  barons,  who  formed  a  part  of  the  council,  and 
that  a  majority  of  that  body  abandoned  to  them  this  im- 
portant duty. 

§  147.  William  I.  also  established  a  tribunal,  called  the 
court  of  Exchequer,  whose  original  business  was  simply  to 
manage  the  revenue  of  the  realm,  and  to  determine  such 
questions  as  might  arise  concerning  it.  It  had  no  judicial 
functions,  and  was  composed,  not  of  judges,  but  of  a  small 
number  of  the  chief  executive  officers  of  the  administration. 
It  was,  in  fact,  what  in  modern  times  would  be  called  a 
board,  although  in  process  of  time  it  has  grown  to  be  one 
of  the  most  important  tribunals  of  the  kingdom,  having 
jurisdiction  over  a  vast  amount  of  civil  business. 

§  148.  During  the  reigns  of  the  two  subsequent  mon- 
archs  (a.  d,,  1087-1154),  no  substantial  changes  were  made 
in  the  national  courts.  The  king's  coui-t  had  indeed  drawn 
to  itself  a  great  amount  of  the  business,  so  that  an  addi- 
tional number  of  justices  had  been  appointed,  and  it 
had  acquired  the  right  to  review  the  decisions  of  all  other 
coui'ts  of  the  realm.  It  still  accompanied  the  king,  being 
held  from  time  to  time  wherever  he  happened  to  be  in  the 
country.  This  custom  arose  from  the  fact  that  it  was  still 
the  monarch's  advisory  council,  and  its  officers  were  required 
to  keep  near  his  person,  and  travel  with  him  in  his  visits  to 
different  towns  and  cities.  Naturally,  as  the  business  of  the 
court  ^increased,  this  its  ambulatory  character  produced 
great  inconvenience  to  suitors. 

§  149.  In  the  reign  of  Henry  II.  (a.  d.,  1154-1188),  the 


86  THE   ITNWKITTEN   LAW. 

curia  regis  had  become  overwlielmed  with  a  vast  accumula- 
tion of  business.  It  had  exchisive  jurisdiction  over  all  trea- 
sons, murders,  homicides,  arsons,  and  some  other  important 
crimes.  To  meet  this  demand  upon  the  court,  and  to  rectify 
the  abuse  of  the  expense  and  delay  of  suitors  in  attending  it 
on  its  progress  through  tlie  kingdom,  and  to  increase  his 
revenues,  Henry  II.  introduced  a  new  judicial  element, 
which  has  continued  to  this  day  in  England,  and  is  the 
basis  of  the  ordinary  courts  of  America  for  the  trial  of 
causes.  He  divided  the  country  into  six  circuits,  each  em- 
bracing several  counties,  and  appointed  itinerant  justices  to 
go  from  county  to  county,  holdmg  courts,  and  trying  such 
causes  as  had  arisen.  It  must  not  be  supposed  that  the  pro- 
ceedings before  these  judges  had  anything  of  the  order  and 
method  which  characterize  a  modern  suit  at  law.  Indeed, 
a  great  part  of  their  duties  consisted  in  looking  after  and 
securing  the  fines  and  profits  due  to  the  king  from  his  feu- 
dal vassals.  In  their  strict  judicial  business,  they  rather 
compounded  with  criminals,  and  settled  for  ofibnces  by  pe- 
cuniary mulcts,  than  enforced  penalties  for  the  prevention 
of  crime.  The  institution  of  these  judges  gave  the  final 
blow  to  the  hundred  and  other  local  courts  of  the  Anglo 
Saxon  policy.  An  appeal  lay  from  their  decisions  to  the 
king's  court,  which  thus  continued  to  hold  a  supervision 
over  the  entire  system  of  the  administration  of  justice. 

§  150.  In  the  reign  of  John  (a.  d.,  1194-121-4),  a  change 
was  effected  which  virtually  settled  the  judicial  policy  of 
England  uj^on  its  present  basis.  One  of  the  provisions  of 
Magna  Charta,  intended  to  rectify  the  abuse  of  the  transitory 
character  of  the  king's  council,  ordered  that,  "  Common 
pleas  shall  not  follow  our  court,  but  shall  be  hold  en  in  some 
certain  place."  Tlie  term  common  pleas  in  this  connection, 
designates  the  judicial  trial  of  all  private  civil  suits,  in 
which  the  cause  of  action  was  not  some  actual  violence  of 
the  defendant.  To  carry  out  this  article  of  Magna  Charta, 
new  justices  were  appointed  before  whom  causes  relating  to 


COURTS    UNDER   EDWARD   I.  87 

land  and  other  civil  matters  were  to  be  tried.  This  court, 
which  was  thus  a  branch  of  the  regal  council  or  curia  regis, 
cut  off  from  it  and  appointed  to  special  duties,  was  fixed  at 
the  City  of  Westminster,  and  received  the  name  of  the  court 
of  Common  Pleas,  or  as  it  is  now  generally  known,  the 
Common  Bench. 

There  was  left  the  curia  regis  proper,  still  having  juris- 
diction in  criminal  matters,  and  being  the  general  appellate 
tribunal  of  the  kingdom.  In  the  course  of  time  it  acquired, 
by  the  use  of  convenient  fictions,  a  jurisdiction  over  very 
large  classes  of  civil  cases. 

§  151.  In  the  reign  of  Edward  I.  (a.  d.,  1272-1306)  the 
law  courts  of  England  were  settled  upon  their  present  basis. 
The  old  royal  council,  in  regard  to  its  judicial  functions, 
was  now  replaced  by  three  superior,  and  in  some  respects, 
coordinate  tribunals,  each  composed  of  a  small  number  of 
judges,  and  each  fixed  at  Westminster.  These  were  the 
court  of  Common  Pleas,  the  king's  court,  called  the  court  of 
King's  Bench,  and  the  court  of  Exchequer.  The  primitive 
jurisdiction  of  the  first  extended  only  to  purely'civil  causes, 
that  of  the  second  was  over  crimes  and  claims  growing  out 
of  personal  violence,  while  that  of  the  third  pertained  to  the 
details  of  the  public  revenue.  Edward  I.  also  remodelled 
the  system  of  itinerant  justices  upon  a  plan  which  continues 
in  operation  to  the  present  day.  Until  the  time  of  this 
change,  the  causes  which  had  been  commenced  in  the  su- 
perior courts,  were  tried  before  them  at  Westminster,  and 
parties  were  subjected  to  the  great  expense  and  trouble  of  a 
journey  from  all  parts  of  the  kingdom,  with  their  witnesses, 
to  that  city.  To  remedy  this  inconvenience,  measures  were 
adopted  by  which  all  cases  could  be  tried  in  the  county 
where  they  arose.  For  this  purpose  the  king  issued  special 
commissions  to  judges  called  judges  of  assize,  empowering 
them  /to  go  into  each  county  and  try  such  civil  suits,  and 
hear  and  determine  such  criminal  charges  as  were  ready. 
The  persons   usually  appointed  for  this  purpose   are  the 


THE   UNWRITTEN   LAW. 


judges  of  the  three  superior  courts,  and  their  peculiar  oflSce 
ceases  when  the  duties  have  been  once  performed.  The 
assizes  are  held  at  least  once  in  each  year  in  every  county, 
and  to  them  the  juries  are  summoned.  They  are  not  courts 
continually  existing,  but  are  yearly  organized,  perform  their 
functions,  and  end,  being  in  fact  offshoots,  or  aids  of  the 
superior  courts  at  Westminster.  A  cause  arising  in  any 
particular  county  is  commenced  in  one  of  the  three  courts 
at  Westminster,  for  example,  in  the  common  pleas  ;  it  pro- 
ceeds until  it  is  ready  for  trial ;  an  assize  judge  comes 
within  the  county  at  the  appointed  time,  and  holds  a  court 
in  which  the  matter  is  tried  before  a  jury  ;  after  their  verdict 
the  case  is  remitted  to  the  common  pleas  at  Westminster, 
to  be  proceeded  with  as  the  situation  of  the  case  may  de- 
mand. Whatever  legal  questions  may  have  arisen  on  the 
trial  are  argued  before  all  the  judges  of  that  court,  and 
decided  by  tlrem,  when  the  final  judgment  is  rendered. 

§  152.  I  shall  now  describe  how  these  several  su- 
perior courts  gradually  acquired  jurisdiction  over  the  sub- 
jects which  are  contiimally  brought  before  them.  As  has 
been  stated,  the  court  of  common  pleas  originally  had  the 
power  to  hear  and  decide  all  controversies  respecting  land 
and  other  civil  questions.  This  jurisdiction  it  still  retains 
unimpaired.  The  court  of  King's  Bench,  in  like  manner, 
was  the  great  criminal  tribunal,  and  conservator  of  the 
peace  of  the  realm.  This  function  has  not  been  abridged 
or  shared  with  any  other  court.  Its  power  in  regard  to 
civil  actions  has  increased  step  by  step,  through  the  means 
of  harmless  but  ingenious  fictions,  which  the  judges  have 
freely  used  to  extend  their  jurisdiction.  The  duty  of  con- 
serving the  peace,  naturally  involved  the  power  to  hear  and 
determine  all  actions  not  criminal,  which  were  brought  by 
a  person  to  obtain  daniages  for  acts  of  direct  violence  to  his 
person  or  proper:  y.  By  a  peculiarity  of  the  English  proce- 
dure, which  will  1)6  ex|)lained  in  a  subsequent  section  of 
this  chapter,  many  classes  of  civil  actions,   although  not 


JUEISDICTIOlSr    OF   ENGLISH    COURTS.  89 

involving  any  actual  violence  of  tlie  defendant,  were,  by  a 
fiction,  supposed  to  be  based  upon  a  forcible  invasion  of  the 
plaintilf's  rights,  and  were  so  treated.  These  were  also 
brought  within  the  increasing  jurisdiction  of  the  King's 
Bench.  It  was  decided  that  when  a  j)erson  was  actually  in 
the  custody  of  the  court,  having  been  arrested  upon  its  pro- 
cess, no  other  tribunal  could  interfere,  and  entertain  suits 
brought  against  him.  To  prevent  a  failure  of  justice,  the 
King's  Bench  must,  therefore,  permit  any  action  to  be 
brought  before  it,  against  a  defendant  thus  under  its  con- 
trol. In  taking  the  next  step,  the  court  greatly  enlarged  its 
jurisdiction,  by  the  employment  of  a  glaring  fiction.  Al- 
though a  defendant  was  not  actually  in  custody,  he  was 
assumed  to  be,  and  the  assumption  could  not  be  contra- 
dicted. The  plaintiff  alleged  in  his  pleading  at  the  com- 
mencement of  the  suit,  that  his  adversary  was  in  the  cus- 
tody of  the  court,  and  the  latter  was  not  allowed  to  deny 
the  statement.  In  this  manner,  the  King's  Bench,  by  its 
own  acts,  obtained  a  kindred  jurisdiction  with  the  common 
pleas  over  the  private  legal  controversies  of  parties. 

§  153.  The  progress  of  the  court  of  Exchequer  toward 
its  ample  powers  was  even  more  entirely  founded  upon 
fictions.  When  created,  this  tribunal  was  only  an  execu- 
tive board,  composed  of  leading  barons  chosen  from  the 
royal  council.  Their  duty  was  to  contrive  and  carry  out 
measures  to  systematize  and  increase  the  public  revenue. 
Naturally  they  were  led  to  consider  and  decide  the  legal 
questions  connected  with  the  fiscal  matters  brought  before 
them,  and  thus  there  commenced  a  judicial  function.  In  the 
progress  of  time,  the  king's  debtors  were  sued  in  this  court, 
and  it  finally  acquired  an  extended  range  of  civil  jurisdic- 
tion nearly  equal  to  that  of  the  Common  Pleas  and  ^King's 
Bench,  by  allowing  actions  to  be  brought  before  it  by  per- 
sons who  alleged  that  they  were  debtors  to  the  Idng,  and 
were  deprived  of  their  ability  to  pay,  through  the  wrongful 
acts  of  the  defendant  which  were  the  occasion  of  the  suit. 


90  THE   rNWRITTEN   LAW. 

At  first  tliis  power  was  probably  assumed  only  wlieii  the 
plaintiff's  statement  of  his  indebtedness  was  actnally  true, 
but  it  was  soon  extended  to  all  cases,  and  tlie  allegation 
became  a  mere  form  which  could  not  be  contradicted. 

§154.  I  have  thus  stated  the  origin  and  briefly  traced 
the  progress  of  the  three  superior  courts  of  original  juiis- 
diction  in  England,  through  whose  judicial  action  the  un- 
written law  lias  been  built  up  to  its  present  condition.  Of 
their  special  powers,  in  addition  to  their  general  duties,  in 
hearing  and  determining  suits,  it  is  not  my  purpose  to 
speak,  except  to  refer  in  its  proper  place  to  the  important 
function  of  issuing  writs  of  habeas  corpus.  Each  of  these 
tribunals  consists  of  a  chief  justice,  and  several  assistant  or 
puisne  justices.  Those  of  the  court  of  Exchequer  are  termed 
barons.  Over  them  all  are  placed  two  courts  of  review ; 
one,  called  the  court  of  exchequer  chamber,  is  composed  of 
the  judges  of  the  two  courts,  other  than  the  one  whose  judg- 
ment is  reviewed ;  the  other  is  the  House  of  Lords,  the 
highest  tribunal  in  the  kingdom,  whicli  thus  retains  the 
vestiges  of  that  judicial  power  which  belonged  to  the  an- 
cient council  of  the  king. 

§  155.  Tliis  short  historical  sketch  clearly  shows  that  the 
civil  and  criminal  business  of  the  kingdom,  which,  in  the 
Anglo  Saxon  constitution,  was  distributed  among  the  local 
courts  of  the  counties  and  hundreds,  has  been  drawn  into 
the  imperial  tril)unals  of  the  central  government.  Within 
a  few  years  past,  a  partial  i-eturn  lias  been  made  to  the  old 
idea,  by  the  organization  of  county  courts,  for  the  trial  of 
minor  causes,  which  are  held  by  a  single  judge.  The  pro- 
cedure in  them  is  simple,  and  divested  of  fonns,  and  the 
jury  is  optional  with  the  parties. 

I  shall  now  describe  in  a  general  way,  the  corresponding 
Law  Courts  of  the  United  States. 

§  156.  The  Courts  of  the  United  States  were  not,  like 
those  of  England,  the  result  of  generations  of  growth  and 
adaptation    to   the   increasing  wants  of  the   communities. 


AMEBICAN   STATE   COURTS.  91 

They  were  the  creatures  of  the  constitutions  or  statutes  of 
the  individual  States,  and  the  Federal  Government,  ftilly 
organized  at  once  by  the  fiat  of  the  legislature.  Still  we 
had  all  the  experience  of  our  English  ancestors  to  borrow 
from,  and  the  English  models  to  copy,  and  have,  in  all  es- 
sential particulars,  conformed  our  higher  tribunals  to  these 
patterns. 

§  157.  I  cannot,  within  the  limits  of  this  work,  give  any 
detailed  account  of  the  judicial  systems  of  the  several  Amer- 
ican commonwealths.  A  general  outline  will  suffice  for  the 
whole.  In  each  of  the  States  there  is  a  superior  court,  pos- 
sessing an  original  general  jurisdiction  in  civil  and  ci-iminal 
matters,  composed  of  three  or  more  justices,  and  clothed 
with  most  of  the  important  powers  of  the  three  superior  law 
courts  of  England.  Connected  with  this,  and  in  a  measure 
subordinate  to  it,  either  as  actual  branches,  or  as  distinct 
tribunals,  are  the  courts  held  at  stated  times  in  each  county 
or  district  for  the  trial  of  causes  by  a  jury,  which  are  anal- 
ogous to  the  English  assizes.  These  trial  courts,  as  they 
may  be  termed,  are  in  most  of  the  States  presided  over  by 
different  judges  from  those  which  form  the  superior  court, 
and  from  them  appeals  are  brought  to  the  latter.  In  many 
of  the  States,  there  are  other  inferior  tribunals  in  each 
couuty,  which  have  jurisdiction  over  civil  causes  of  a  lim- 
ited amount,  and  over  the  lesser  grades  of  crimes.  In  some 
of  the  commonwealths,  this  system  is  perfected  by  an  ap- 
pellate tribunal,  designed  exclusively  to  review  the  decisions 
of  the  superior  courts  of  original  jurisdiction.  Frequent 
changes  have  been  made  in  the  judiciary  of  the  different 
States,  as  the  rapidly  increasing  business  demanded  a  more 
extensive  system,  or  as  the  people  themselves  have  been  led, 
by  our  national  feeling  of  unrest,  to  prefer  new  things  to 
the  old. 

The  'foregoing  will  suffice  for  a  description  of  tlie  law 
courts  of  the  various  American  States.  It  will  be  seen  that 
they  include,  under  some  form,  a  bench  of  judges,  appointed 


92  THE    UNWRITTEN    LAW. 

hj  governors,  or  elected  by  the  people,  whose  functions  are 
to  decide  the  law  in  a  formal  and  solemn  manner,  and  sub 
ordinate  trial  courts,  in  which  a  jury,  under  the  presidenc}' 
of  a  circuit  judge,  determines  the  questions  of  fact. 

§  158.  The  organization  of  the  Federal  courts  of  the 
United  States  demands  a  more  particular  description.  In 
the  ITational  Constitution  it  is  declared  that  "  The  judicial 
power  of  the  United  States  shall  be  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  Congress  may-  from 
time  to  time  ordain  and  establish."  *  *  *  "  The  judi- 
cial power  shall  extend  to  all  cases  in  law  and  equity,  aris- 
ing under  this  constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made  under  their  au- 
thority ;  to  all  cases  of  admiralty  and  maritime  jurisdiction ; 
to  controversies  to  which  the  United  States  shall  be  a  party ; 
to  controversies  between  two  or  more  States  ;  between  a 
State  and  the  citizens  of  another  State  ;  between  citizens  of 
different  States  ;  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States ;  and  between  a 
State  or  the  citizens  thereof,  and  foreign  States,  citizens,  or 
subjects.  In  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  State  shall  be 
a  party,  the  supreme  court  shall  have  original  jurisdiction. 
In  all  the  other  cases  above  mentioned,  the  supreme  court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions,  and  under  such  regulations,  as  Con- 
gress sliall  make." 

§  159.  Acting  under  these  general  grants  of  power,  the 
United  States  Congress  have  organized  the  following  courts, 
which  now  exist  as  the  Federal  judicial  system  ;  the  Supreme 
Court,  the  District  Courts,  and  the  Circuit  Courts.  The  Su- 
preme Court  is  now  composed  of  one  chief  justice  and  eight 
associate  justices.  Although  they  have  original  jurisdiction 
in  certain  cases,  they  are  practically  an  appellate  tribunal 
only.  They  hold  one  terra  in  each  year  at  the  City  of 
Washingtonk     Their  business   consists   almost   entirely  in 


THE   FEDERAL   COURTS.  93 

hearing  and  deciding  cases,  brought  to  them  for  review 
from  the  Circuit  Courts  of  the  United  States,  from  some  of 
the  District  Courts,  and  occasionally  from  the  highest  court 
of  an  individual  State. 

§  160.  The  Supreme  Court  of  the  United  States  has  al- 
ways borne  a  very  high  character  as  a  learned  and  able 
tribunal.  As  it  derives  its  jurisdiction  entirely  from  the 
constitutional  provisions  cited  above,  the  cases  brought  be- 
fore it  do  not  present  so  large  a  variety  of  subjects  as  those 
which  engross  the  attention  of  the  superior  State  courts. 
The  gi'eat  amount  of  legal  business  transacted  by  the  people 
of  the  United  States  finds  its  wsij  through  the  latter  tri- 
bunals ;  they  represent  more  completely  the  courts  of  Eng- 
land. Cases  relating  to  the  ordinary  transactions  of  mercan- 
tile and  commercial  business  cannot  be  brought  before  the 
Federal  courts,  unless  the  parties  are  citizens  of  different 
States,  and  such  instances  are,  of  course,  comparatively  rare. 
Practically,  the  great  majority  of  legal  controversies,  which 
find  a  hearing  before  1jae  national  judiciary,  are  those  aris- 
ing under  the  laws  of  the  United  States,  those  belonging  to 
the  admiralty  jurisdiction,  and  those  between  citizens  of  two 
different  States.  The  latter  class  may  involve  any  kind  of 
question,  upon  any  subject  whatever.  It  is  not  the  transac- 
tion, but  the  citizensliip  of  the  parties  which  confers  the 
jurisdiction.  Thus  we  find  disputes  concerning  land,  per- 
sonal property,  contracts,  commercial  and  mercantile  trans- 
actions occasionally  discussed  and  determined  by  these 
courts,  and  their  decisions  upon  these  subjects  have  always 
commanded  great  respect,  not  only  in'  the  United  States, 
but  in  Europe,  as  expositions  of  those  branches  of  the  law 
which  contain  the  same  general  principles  thi-oughout  the 
civilized  world.  Of  the  admiralty  jurisdiction,  I  shall  speak 
in  another  section.  Those  cases  arising  under  the  laws  of  the 
United  States,  which  form  the  most  numerous  class  brought 
before  these  30urts,  are,  from  their  nature,  to  a  certain 
extent  special,  involving  more  often  a  mere  construction  of 


94  THE   UNWRITTEN   LAW. 

Statutes,  than  any  general  legal  principles.  Some  of  the 
most  important  divisions  of  causes  in  this  branch,  are  those 
relating  to  patent  rights,  arising  from  the  patent  laws ;  those 
relating  to  the  revenue,  arising  from  laws  imposing  duties 
and  imposts,  and  regulating  the  acts  of  collectors  of  ports  ; 
and  those  relating  to  the  public  lands  which  have  been  dis- 
posed of,  or  otherwise  controlled  by  acts  of  Congress.  The 
most  important  and  peculiar  function  of  the  N^ational  Court 
is  exercised  in  deciding  great  constitutional  questions,  it 
having  the  power  practically  to  avoid  a  law,  either  of  Con- 
gress, or  of  a  State  Legislature,  which  it  shall  declare  to 
infringe  upon  the  provisions  of  the  Federal  Constitution. 
No  other  National  Court  of  Justice  seems  to  possess  this 
exalted  jurisdiction  to  which,  if  not  in  theory,  yet  in  reality, 
both  the  executive  and  the  legislative  departments  must 
bow.  By  far  the  most  interesting  passages  in  the  history 
of  the  Supreme  Court,  have  been  those  where  great  political 
questions,  involving  different  constructions  of  the  organic 
law,  have  been  discussed  and  decided.  It  has  been  in  these 
that  the  great  judges,  Marshall,  and  Story,  and  Taney, 
and  the  profound  jurists,  Webster,  Wirt,  Pinckney,  have 
exhibited  their  highest  powers,  and  shone  with  transcendent 
splendor. 

§  161.  The  District  Courts  of  the  United  States  are  held 
by  a  single  judge,  and  are  confined  to  separate  districts, 
generally  coterminous  with  the  States.  Their  jurisdiction  is 
original,  and  is  quite  varied.  Much  of  their  business  is  car- 
ried on  without  a  jury.  In  these  courts  the  offenders  against 
the  criminal  laws  of  the  United  States  are  arraigned  and 
tried,  of  course  before  a  jury  drawn  from  the  citizens  of  the 
district. 

The  Circuit  Courts  are  partly  an  intermediate  appellate 
tribunal  between  the  two  extremes  of  the  judicial  system, 
and  ])artly  are  courts  of  original  jurisdiction.  The  greater 
part  of  the  territory  of  the  United  States  is  divided  into  nine 
circuits,  each  containing  several  States.     In  each  a  Circuit 


COTJRTS    OF   EQUITY.  95 

Court  is  held,  composed  of  one  justice  of  the  Supreme  Court, 
and  the  judge  of  the  district  in  which  the  court  sits.  In  it 
are  brought  suits  relating  to  patent  rights,  and  those  be- 
tween the  citizens  of  the  different  States,  both  classes  often 
requiring  a  jury  for  their  trial ;  also  certain  criminal  cases, 
and  others  which  I  need  not  particularize.  Tliey  have  also 
the  general  power  to  review  the  judgments  and  decrees  of 
the  District  Courts.  The  limits  of  this  work  do  not  permit 
me  to  speak  in  detail  of  the  power  of  review  of  the  Supreme 
Court  over  the  decisions  of  the  Circuit  Courts.  It  is  sufficient 
to  say  that  almost  all  cases  may  be  taken  from  the  inferior 
to  the  Supreme  Court,  and  there  finally  decided. 

§162.  The  ISational  courts  are  thus  seen  to  possess  a 
varied,  and,  in  some  respects,  a  peculiar  jurisdiction.  As 
regards  some  questions,  as,  for  example,  those  relating  to 
patents,  to  admiralty,  and  to  crimes  against  the  United 
States,  this  jurisdiction  is  exclusive ;  the  State  courts  can- 
not entertain  such  causes.  In  respect  to  another  large 
branch  of  its  business,  especially  that  founded  upon  the 
citizenship  of  the  parties,  the  jurisdiction  is  shared  with  the 
courts  of  the  several  States, 

I  shall  now  proceed  to  describe  those  courts  of  England 
and  America,  which  transact  their  judicial  business  without 
a  jury,  committing  all  questions,  both  of  law  and  fact,  to  the 
official  judges. 

II.  The  Courts  of  Equity. 

§  163.  The  chief  of  these  in  England  is  the  Court  of 
Chancery,  of  which  the  presiding  judge  is  the  Lord  High 
Chancellor.  The  office  of  the  chancellor  is  very  ancient.  It 
existed  among  the"  Saxons,  among  the  Franks  on  the  Con- 
tinent, and  among  the  Normans  after  the  invasion.  The 
chancellor  was  a  high  dignitary  immediately  connected  with 
the  kind's  person,  forming  one  of  his  select  council,  but  pos- 
sessing no  separate  judicial  functions.  He  was  originally 
chosen  always  from  among  the  ecclesiastics,  and  it  was  not 


96  THE    UNWKITIEN    LAW. 

until  iu  the  reign  of  Heury  Vlll.  that  the  custom  of  ap- 
pointing lay  chancellors  became  permanent.  His  judicial 
duties  were  of  gradual  growth.  The  origin  and  progress  of 
the  custom,  until  it  developed  itself  into  the  fully  organized 
court  possessing  peculiar  powers,  proceeding  by  methods 
diiferent  from  those  of  the  law  courts,  and  producing  a  dis- 
tinct body  of  rules  denominated  equity,  will  be  more  appro- 
priately given  in  a  subsequent  section,  in  which  I  shall  treat 
of  actions  and  the4)rocedure  of  courts.  It  is  sufficient  now 
to  say  that  the  tribunals  administering  the  law  by  means  of 
juries  were  found  inadequate  to  meet  all  the  demands  of 
justice,  even  in  quite  ancient  times.  Many  questions  were 
arising  which  did  not  fall  within  the  established  rules  of  the 
law,  or  which,  if  decided  by  them,  would  work  palpable 
wrong,  and  such  matters  in  theory,  and  at  first  in  practice, 
were  reserved  for  the  king  himself  to  determine.  The  mon- 
arch entrusted  this  judicial  function  of  his  kingly  office  to 
the  chancellor,  who  was  the  keeper  of  his  great  seal,  and  the 
adviser  of  his  conscience.  Thus  the  chancellor  began  to  judge, 
and  continued,  until  his  court  became  as  firmly  established 
as  those  of  the  King's  Bench,  Common  Pleas,  or  Exchequer. 

§  164.  In  addition  to  his  judicial  functions,  the  chan- 
cellor in  England  has  important  political  and  administra- 
tive duties,  which  it  is  unnecessary  for  me  to  dwell  upon. 
He  is  the  first  lay  subject  in  the  realm,  is  president  of  the 
House  of  Lords,  and  is  always  a  leading  member  of  the 
administration  in  power.  The  judges  of  the  other  courts 
hold  their  seats  during  good  behavior,  but  he  retains  his 
office  by  a  frail  tenure.  Custom  has  established  the  rule 
that  the  chancellor  changes  with  every  revolution  of  dom- 
inant political  parties. 

He  is  assisted  in  his  judicial  labors  by  several  subordi- 
nate judges,  the  master  of  rolls,  the  vice  chancellor  of  Eng- 
land, two  other  vice  chancellors,  and  by  two  judges  of 
appeals  in  equity,  created  by  a  modern  statute.  From  hib 
decisions  an  aj^peal  is  permitted  to  the  House  of  Lords. 


COURTS    OF    EQUITY   IN    THE    UNITKD    STATES.  97 

§  165.  Although  these  judges  of  the  court  of  chancery 
pronounce  upon  the  law  and  the  facts  of  a  case  without  the 
intervention  of  a  jury,  yet  tliey  are  assisted  in  the  onerous 
details  of  much  of  the  business  before  them  by  a  class  of 
semi-judicial,  semi-clerical  officers,  called  masters,  who  do 
much  of  the  actual  investigation  of  controverted  facts,  and 
report  their  conclusions  to  the  judge,  who  may  adopt  or 
reject  them. 

§  166.  Equity  Courts  of  the  United  States. — Some  of  the 
American  States  have  no  tribunals  with  equity  powers  ;  in 
most,  however,  the  ordinary  superior  courts  entertain  both 
suits  at  law  and  in  equity,  adopting  alternately  the  peculiar 
procedure  and  rules  applicable  to  the  two  classes  of  juris- 
diction ;  while  in  a  few  there  is  a  separate  court  of  chancery. 
In  the  State  of  New  York,  until  the  year  1846,  the  courts 
of  equity  were  distinct  from  those  of  law,  and  consisted  of  a 
chancellor,  and  several  vice  chancellors.  The  court  was  thus 
formed  directly  upon  the  English  model,  but  the  judges  pos- 
sessed no  other  than  judicial  duties,  and  held  their  offices 
during  good  behavior.  The  States  of  New  Jersey  and  South 
Carolina  still  retain  the  separate  court  of  chancery,  with  its 
peculiar  organization,  procedure,  and  doctrines. 

§  167.  The  District,  Circuit,  and  Supreme  Courts  of  the 
United  States,  may  act  either  as  law  or  equity  tribunals. 
This  method,  which  is  general  with  us,  only  clothes  the 
judge  with  two  distinct  capacities,  it  does  not  unite  the 
jurisdictions.  He  sits  in  one  cause  as  the  judge  of  a  law 
court,  following  the  rules  of  that  forum,  and  trusting  to  a 
jury  to  decide  all  questions  of  fact  in  issue  between  the 
parties  ;  in  another  suit,  he  administers  justice  according  to 
the  peculiar  doctrines  and  by  the  methods  of  the  English 
Court  of  Chancery.  This  form  of  organization  has  some 
great  advantages  over  that  of  the  English  Constitution.  It 
prevents'  a  multiplicity  of  courts,  and  requires  that  the 
judges  should  be  familiar  with  both  systems  of  legal  rem- 
edies, and  should,  therefore,  be  more  competent  to  define 
7 


98  THE    UNWRITTEN   LAW. 

their  limits,  and  apply  tliem  to  particular  cases.  In  Eng- 
land a  commencement  has  Leen  made  of  a  union  between 
the  two  classes  of  jurisdiction,  by  alloMdng  the  superior 
courts  of  law  in  certain  cases  to  entertain  equity  suits  or 
defences,  which  is  an  imiovation  entirely  in  conflict  with 
their  whole  judicial  theory.  This  step  may  result  in  an 
entire  blending  of  the  powera  and  functions  of  the  two  juris- 
dictions, and  their  committal  to  one  court  in  England,  as 
in  the  United  States. 

m.  Ecclesiastical  Courts. 

§  168.  I  have  already  stated  that  under  the  Saxon  rule, 
the  com'ts  of  the  shire  and  of  the  hundred,  acted  under  the 
double  presidency  of  a  state  oflicer  and  a  bishop,  taking 
cognizance  of  matters  ecclesiastical  as  well  as  civil,  and 
that  William  I.  soon  broke  through  this  simple  constitution, 
by  removing  the  bishops  from  these  duties,  and  enti'usting 
all  spiritual  jurisdiction  to  them  alone.  Hence  have  arisen 
the  ecclesiastical  courts  as  distinct  tribunals.  In  theory 
each  bishop  and  archbishop  is  a  judge  within  his  diocese, 
or  province ;  in  practice  they  delegate  their  functions  to 
lay  deputies.  The  most  important  ecclesiastical  courts  of 
the  kingdom  are  those  of  the  provinces  of  York  and  Can- 
terbury. 

§  169.  The  peculiar  jurisdiction  of  these  tribunals  is 
divided  into  two  branches.  The  one  relates  to  subjects 
directly  connected  with  the  established  church,  in  its  char- 
acter of  a  state  institution.  It  embraces  suits  in  reference 
to  church  lands,  and  edifices,  and  parsonages,  the  collection 
of  tithes,  and  the  enforcement  of  discipline  either  against 
laymen  or  clergymen. 

§  170.  The  other  branch  is  of  much  more  general  im- 
portance, both  as  it  aflPects  the  municipal  law,  and  the  rights 
and  interests  of  the  whole  people.  In  early  times  the  clergy 
were  engaged  in  a  constant  struggle  with  the  nation  to 
obtain  administrative  and  judicial  power.     They  so  far  sue- 


ECCLESIASTICAL   COURTS.  99 

ceeded  as  to  acquire  control  over  many  legal  questions  re- 
lating to  marriages,  and  the  disposition  of  the  estates  of 
deceased  persons,  under  the  idea  that  marriage  and  death 
were  of  so  sacred  and  solemn  a  nature  as  to  impress  a  cer- 
tain spiritual  character  even  upon  the  civil  accessories  which 
surround  and  accompany  them,  and  that  the  judicial  inves- 
tigation of  all  topics  connected  with  them  belonged  to  the 
church.  The  right  thus  anciently  acquired  by  the  eccle- 
siastical courts,  has  remained  with  them  to  the  present  day, 
and  gives  them  by  far  the  most  important  part  of  their 
duties.  It  includes  the  granting  of  divorces,  the  proof  of 
last  wills  and  testaments,  the  appointment  of  adminis- 
trators and  the  supervision  of  their  official  acts,  and  the 
distribution  of  the  personal  estate  of  deceased  persons.  A 
recent  statute  has  taken  away  the  power  to  grant  divorces, 
and  committed  it  to  a  new  court,  expressly  created  for  the 
hearing  of  matrimonial  causes. 

§  lYl.  In  many  of  the  American  States,  that  portion  of 
these  powers  which  relates  to  wills,  and  the  personal  estates 
of  the  dead,  is  lodged  in  special  tribunals,  which  are  in  this 
respect  the  successors  of  the  English  ecclesiastical  courts. 
In  New  York,  and  some  other  States,  the  judge  who  has 
charge  of  these  subjects  is  called  the  suiTOgate,  in  others  the 
judge  of  probate,  or  the  ordinary.  Both  in  England  and 
America  these  officers  act  without  a  jury,  disposing  them- 
selves of  all  the  questions  involved  in  a  litigation. 

lY.  Admirali/y  Courts. 

§  172.  In  England  and  in  the  continental  states  of  Eu- 
rope, there  has  long  been  a  peculiar  class  of  tribunals  which 
have  cognizance  of  controversies,  and  suits  directly  arising 
from  matters  connected  with  the  navigation  of  the  ocean, 
and  which  are  known  in  our  law  as  admiralty  courts.  In 
most  of  these  countries,  these  courts  have  a  widely  extended 
jurisdiction,  but  in  England,  because  their  methods  are 
different  from  those  of  the  ordinary  courts  of  law  and  dis- 


100  THE    UNWRITTEN    LAW. 

pense  with  the  jury  trial,  there  was  at  an  early  day  a 
strong  feeling  of  jealousy  towards  them  among  the  judges 
of  the  superior  courts,  which  resulted  in  a  partial  curtail- 
ment of  their  powers,  and  confined  their  jurisdiction  to  a 
comparatively  few  maritime  questions  arising  upon  the  high 
seas  where  the  tide  ebbs  and  flows.  This  court  in  England 
is  held  by  a  single  judge.  The  Constitution  of  the  United 
States  empowers  the  courts  created  under  it  to  have  exclu- 
sive cognizance  of  all  civil  causes  of  admiralty  and  maritime 
jurisdiction,  and  under  this  grant  of  power.  Congress  has 
committed  the  original  jurisdiction  in  these  matters  to  the 
United  States  District  Courts,  from  which  appeals  can  be 
had  to  the  Circuit  Courts  and  the  Supreme  Court.  In  con- 
struing this  constitutional  provision  and  the  powers  of  the 
admiralty  courts  under  it,  there  has  been  a  long  and  sharp 
dispute  among  the  judges.  One  class  would  interpret  the 
constitution  according  to  the  restricted  use  of  the  admiralty 
jm'isdiction  adopted  in  England,  while  the  others  would 
allow  to  these  courts  all  the  powers  which  are  granted  to 
them  by  the  maritime  nations  on  the  Continent.  Thus, 
adopting  at  an  early  day  the  English  rule,  the  Supreme 
Court  determined  that  admiralty  jm-isdiction  in  the  United 
States  extended  only  to  cases  arising  on  tide  waters.  But 
this  restriction  has  been  found  incompatible  with  the  pros- 
perity of  our  great  inland  commerce,  and  by  a  late  decision 
this  rule  has  been  abrogated,  and  it  has  been  held  that  the 
great  lakes,  and  navigable  waters  connecting  them,  are  also 
within  the  scope  of  the  law,  as  administered  by  the  courts 
of  admiralty.  In  short,  the  jurisdiction  of  these  courts  has 
been  steadily  increasing,  and  is  approximating  that  of  the 
maritime  tribunals  of  the  nations  of  Europe,  rather  than 
that  of  the  Admiralty  Court  of  England. 

The  subjects  contained  within  this  jurisdiction  are  di- 
vided into  two  general  classes,  those  arising  from  contracts, 
and  those  arising  from  torts  or  wrongful  acts.  The  first 
class  is  limited  to  claims  and  services  purely  maritime,  and 


ADMIRALTY   COURTS.  101 

touching  rights  and  duties  appertaining  to  commerce  and 
navigation.  In  it  are  inchided  the  claims  of  persons  for 
repairs  and  outfits  of  ships  belonging  to  foreign  nations  and 
other  states ;  claims  arising  on  bottomry  bonds,  or  securi- 
ties on  the  vessel  itself,  given  for  money  lent  to  ships  in  a 
foreign  port  to  relieve  them  from  their  distresses  ;  claims  for 
surveys  of  ships  damaged  by  perils  of  the  seas  ;  claims  for 
pilotage  on  the  high  seas ;  claims  of  seamen  for  their  wages ; 
claims  arising  from  contracts  of  hiring  or  freighting  ships, 
and  the  like.  In  the  second  class  are  included  claims  aris- 
ing from  civil  wrongs  and  seizures  done  on  the  waters ; 
from  assaults  and  other  personal  injuries ;  from  collisions 
between  two  vessels  ;  from  illegal  seizures  and  depredations 
of  property,  and  the  like. 

The  courts  of  admiralty  have  also  a  special  jurisdiction, 
existing  in  time  of  war,  to  hear  and  decide  all  matters  of 
"  Prize,"  arising  from  the  seizure  of  merchant  ships  by  the 
armed  vessels  of  the  United  States.  According  to  the  law 
recognized  by  all  civilized  nations,  the  seizure  of  the  mer- 
chant ships  of  an  enemy,  or  tliose  of  a  neutral  when  violat- 
ing the  laws  of  war  by  carrying  articles  contraband  of  war, 
or  by  running  a  blockade,  is  not  absolute  and  final,  until 
the  character  and  nationality  of  the  vessel,  and  the  circum- 
stances and  object  of  the  voyage,  have  been  investigated 
and  decided  by  a  court  of  admiralty.  If  the  result  of  such 
investigation  and  decision  be  in  favor  of  the  captors,  the 
ship  is  condemned,  forfeited,  and  sold. 

§  lYS.  The  procedure  of  the  courts  of  admiralty  is  very 
different  from  that  of  the  courts  of  law  or  equity.  Two 
kinds  of  actions  may  be  brought,  those  against  the  person 
(in  personam)  and  those  against  the  thing  (in  rem).  In  the 
former  a  suit  is  commenced  against  a  known  person  as  de- 
fendant, to  maintain  and  enforce  some  rio-ht.  In  the  latter 
the  suit  is  brought  directly  against  the  vessel,  which  is  at 
once  seized,  and  public  notice  is  given,  so  that  the  owners 
or  persons  interested  therein  may  intervene  and  defend  the 


102  THE   UNW^KITTEN   LAW. 

suit.  It  is  this  latter  species  of  actions  which  particularly 
distinguishes  the  admiralty  procedure  from  that  of  other 
com*ts,  and  gives  it  such  a  superioiity  in  its  treatment  of 
property  so  movable  as  ships  and  other  vessels  on  the  ocean. 
In  the  strict  admiralty  practice,  the  evidence  is  taken,  re- 
duced to  writing,  and  submitted  to  the  judge,  who  decides 
all  the  questions  of  law  and  of  fact,  without  the  aid  of  a 

SECTION  IV. 

OF  THE  MANNER  IN  WHICH  LEGAL  CONTROVERSIES  ARE  BROUGHT  BEFORE 
COURTS,  AND  BY  THEM  TRIED  AND  DECIDED. 

§  174.  It  is  evident  that,  to  insure  promptness  and  ac- 
curacy on  the  part  of  judicial  tribunals,  there  must  be  some 
method,  order,  and  precision  in  presenting  to  them  the  mat- 
ters in  difference  between  suitors.  More  than  this,  the  reg- 
ular and  scientific  development  of  the  whole  body  of  the 
municipal  law,  through  the  official  acts  of  magistrates,  is 
most  intimately  bound  up  in  the  forms  of  procedure  used 
by  them.  Xo  national  jurisprudence  has  grown  to  be  com- 
prehensive, enlightened,  and  just,  without  the  aid  of  these 
conventional,  and,  to  a  certain  extent,  arbitrary  instruments. 
While  the  English  law  was  for  a  long  time  bound  up  and 
hampered  in  its  progress  by  a  too  nice  regard  for  the  tech- 
nicalities of  form,  the  opposite  extreme  of  disregarding  all 
forms,  and  permitting  each  suitor  to  disclose  his  complaint 
or  defence  in  such  manner  as  pleased  him  best,  would  be 
destructive  of  all  endeavors  to  reduce  the  law  to  a  compact 
and  digested  system,  and  in  fact  could  only  have  existed 
among  the  rude  Saxons  and  Franks  at  their  folk  courts. 
There  we  find  the  law  stripped  of  all  forms  of  procedure  ; 
the  freemen  are  gathered  in  an  assembly  ;  the  plaintifl"  tells 
his  story  ;  the  defendant  publicly  rejoins  in  person,  or,  as  in 
a  case  already  cited,  communicates  in  private  to  messen- 
gers ;  neighbors  and  friends  disclose  then*  knowledge  ;  the 
assembly  decides,  not  in  reference  to  any  fixed  rules,  but 


FORMS    OF   JUDIiHAL   PKOCEDUEE.  103 

according  to  vague  neighborhood  customs,  and  imperfect 
ideas  of  justice,  and  the  result  is  written  down  in  the  parish 
register,  or  copy  of  the  gospels  of  an  adjacent  church.  Tliis 
is  the  pictm'e  of  judicial  process  in  the  earliest  stages,  before 
there  has  been  any  advance,  however  feeble,  toward  a  real 
municipal  and  scientific  jurisprudence. 

§  1Y5.  A  casual  survey  of  the  legislation  of  different 
countries  will  show,  that,  after  the  first  steps  are  taken,  and 
the  progress  toward  final  perfection  is  fairly  entered  upon, 
but  before  the  legal  ideas  have  yielded  to  the  influence  of 
general  ethical  principles,  the  procedure  is  distinguished  by 
a  strict  adherence  to  forms,  often  in  the  liighest  degree  arbi- 
trary. At  more  advanced  stages  this  arbitrary  character 
and  technical  nicety  of  legal  actions  gradually  gives  way ; 
the  substance,  the  merits  of  the  dispute,  are  more  regarded 
by  the  courts ;  the  deviations  from  prescribed  formularies  are 
passed  over.  Finally,  when  the  jurisprudence  has  attained 
a  position  where  the  greatest  possible  weight  is  given  to  con- 
siderations of  abstract  right,  and  the  least  to  those  merely 
historical  and  institutional,  when  the  aim  of  the  law  is  to 
rule  the  actions  and  intercourse  of  citizens  by  maxims  of 
pure  morality,  the  judicial  procedure  will  have  retained 
only  so  much  of  form  as  is  indispensable  to  the  orderly  and 
speedy  administration  of  justice.  A  historical  sketch  of  the 
legal  processes  of  our  own  courts  will  show  that  the  earlier 
stages  of  this  development  have  been  passed  through,  and 
that  in  England  and  America  the  last  has  been  commenced. 
Kot  that  perfection  has  been  reached  ;  not  that  we  are  in 
the  golden  mean,  for  doubtless  many  time-honored  meth- 
ods must  yet  be  discarded,  and  perhaps  some  new  expe- 
dients lately  adopted  will  introduce  confusion  and  uncer- 
tainty, far  outweighing  in  evil  the  good  effects  of  their 
apparent  simplicity. 

§  VJ6.  Before  giving  any  account  of  the  forms  of  action, 
pleading,  and  proceeding,  which  have  grown  up  in  the 
English  and  Ainerican  courts,  and  which  involve  a  state- 


104  THE   UNWRITTEN    LAW. 

jnent  of  the  origin  of  many  legal  principles  and  doctrines,  ] 
shall  preface  the  subject  by  a  brief  and  summary  descrip- 
tion of  the  Roman  procedure,  which  will  illustrate  the  pre- 
ceding observations,  extending  as  it  does  through  the  whole 
life  of  a  national  jurisj)rudence,  from  the  rude  origin  to  the 
enlightened,  comprehensive,  and  perfected  close. 

I.  The  Roman  Procedure. 

§  177.  In  the  earliest  periods  of  the  Roman  common 
wealth,  extending  to  about  the  time  of  the  Twelve  Table?, 
the  administration  of  justice  had  not  been  completely  sep- 
arated, as  afterward,  between  those  magistrates  who  decided 
the  law,  and  the  lay  judges  who  pronounced  upon  the  facts. 
All  legal  knowledge,  and  especially  that  of  the  forms  of 
action,  was  confined  to  the  patricians,  from  which  class  the 
magistrates  were  chosen.  The  proceeding  by  which  a  legal 
right  was  judicially  enforced  was  called  legis  actio,  an 
action  at  law.  Of  these  there  were  five  distinct  kinds, 
1,  Sacramento ;  2,  per  judicis  postulationem  ;  2,  per  condic- 
tionem  ;  4,  per  manus  injectionem ;  5,  per  pignoris  cap- 
tionem.  These  actions  were  intensely  technical ;  the  slight- 
est deviation  from  the  prescribed  forms  defeated  the  re- 
covery. They  could  only  be  commenced  upon  certain  con- 
secrated days,  which  were  solely  known  by  the  augurs.  In 
regard  to  the  actual  steps  or  proceedings  in  each,  but  little 
is  known.  The  first  was  the  most  ancient  and  common. 
The  second  was  characterized  by  the  demand  for  a  judge 
(judex)  to  decide  the  facts.  In  the  fourth  the  defendant 
was  arrested,  and  could  be  released  only  by  furnishing 
securities.  If  the  first  action  related  to  the  title  or  owner- 
ship of  some  particular  thing,  the  trial  was  prefaced  by  an 
inquiry  to  determine  with  which  party  the  possession  of  the 
subject  matter  should  remain  during  the  litigation ;  and 
when  the  contest  involved  the  freedom  or  slavery  of  an 
individual,  this  preliminaiy  question  should  always  be  de- 
cided in  favor  of  liberty.     Tlie  glaring  illegality  of  the  act 


EAKLY    JUDICIAL   PEOCEDUEE   OF   THE   ROMANS.  105 

of  the  decemvir  Appius  Claudius,  in  the  story  of  Yirginia, 
was  that  he  violated  this  salutary  rule,  and  awarded  the 
possession  of  the  maiden,  during  the  pendency  of  the  suit, 
to  the  plaintiflF.  The  actual  merits  of  the  case  were  never 
reached. 

§  178.  The  action  was  commenced  by  no  form  of  process 
or  official  summons.  The  plaintiff  personally  ordered  the 
adverse  party  to  appear  before  the  magistrate,  and,  u]Don  his 
refusal  to  attend,  might  drag  him  thither  by  force.  The 
judgment  in  most  cases  was  in  the  nature  of  an  award  of 
pecuniary  damages.  In  an  action  brought  to  recover  loaned 
money,  the  plaintiff  was  required  to  wait  twenty  days  after 
the  decision,  in  which  the  debtor  might  pay  the  amount  of 
the  judgment.  Upon  the  failure  of  the  defendant  to  per- 
form his  obligation  at  the  expiration  of  this  period,  the 
plaintiff  summoned  him  before  the  magistrate,  and  called 
upon  him  to  furnish  responsible  sureties  for  the  payment  of 
the  claim.  This  failing,  he  might  thrust  his  debtor  into  &^ 
private  prison,  and  there  confine  him  for  two  months,  bring- 
ing him  out  three  times  into  some  public  place,  to  give 
opportunity  for  security  to  be  offered.  At  the  end  of  this 
limitation  all  rights  of  the  defendant  ceased,  his  goods  could 
1)0  taken,  and  himself  sold  into  slavery  in  satisfaction  of  the 
plaintiff's  demand.  Tlie  barbarous  provision  existed,  that, 
in  case  several  judgment  creditors  had  claims  against  the 
same  debtor,  they  might  divide  his  body  between  them. 

§  1T9.  During  the  period  commencing  with  the  Twelve 
Tables,  the  Eoman  law  began  its  onward  march  of  improve- 
ment, through  the  aid  of  judicial  construction  and  decision. 
The  patricians  as  a  body  ceased  to  be  the  sole  depositaries 
of  legal  learning.  Jurisprudence  itself  was  no  longer  bound 
up  in  a  close  alliance  with  religion.  The  creation  of  the 
magistrates  called  praetors,  exerted  a  marked  and  constantly 
increasing  influence  upon  the  development  of  the  science, 
until  it  readied  its  most  flourishing  era.  Much  of  this 
improvement  was  effected  through  the  judicial  machinery 


106  THE   UNWRITTEN   LAW". 

and  forms  of  action  invented  bj  the  prsetors,  and  to  fully 
understand  this  most  interesting  branch  of  legal  history, 
which  has  so  close  a  relation  with  similar  modifications 
of  the  English  law,  it  is  necessary  to  anticipate  a  little 
some  of  the  statements  which  more  naturally  belong  to  a 
chapter  exclusively  devoted  to  the  Roman  law. 

§  180.  The  foundation  of  the  Roman  jm'isprudence  was 
the  lex  civilis,  or  law  applicable  to  the  citizen.  Its  rules 
were  positive,  formal,  unyielding,  and  arbitrary,  being  the 
exponents  of  the  peculiar  type  of  the  i:)rimitive  Roman  civ- 
ilization. Sprung  from  customs  and  unwritten  usages,  and 
modified  or  increased  by  statutes  and  the  opinions  of  juris- 
consults who  labored  to  preserve  it  in  its  purity  and  strict- 
ness, it  afforded  no  scope  to  the  magistrate  for  the  exercise 
of  discretion  or  equity,  to  evade,  soften,  or  alter  any  of  its 
provisions.  As  long  as  the  judges  were  bound  by  its  fixed 
rules,  their  decisions  must  be  yea,  yea,  nay,  nay.  But  this 
iron  framework  of  legal  doctrines,  would  not  long  suffice  for 
the  expanding  life  of  the  Roman  people.  The  praetors  must 
legislate  to  meet  new  cases,  and  to  correct  old  abuses. 
Wliile  such  legislation  departed  from  the  old  dogmas,  it  was 
still  built  upon  them  as  a  basis.  It  did  not  violently  oppose 
the  established  system,  but  rather  struggled  to  lead  it  into 
new  and  necessary  channels.  It  gradually  introduced  the 
ideas  of  abstract  right,  which  the  Romans  called^i^s  gentiwn. 
The  additions  thus  engrafted  upon  the  ancient  stock  were 
known  as  the  praetorian,  or  honorary  law,  and  came  at 
length  to  constitute  the  great  body  of  the  national  jurispru- 
dence, in  its  age  of  most  philosophic  culture.  A  careful 
examination  of  this  development,  and  a  comparison  between 
it  and  tlie  analogous  work  done  by  the  English  courts  of 
chancery,  and  of  law,  afford  a  most  interesting  subject  of 
contemplation  to  the  legal  student,  and  I  propose  to  illus- 
trate this  instructive  topic  more  at  large  in  a  subsequent 
chapter. 

§  181.  The  transitions  and  additions  thus  made  by  the 


JTJDICIAL   PEOCEEDnSTG   BY   FOKMULAS.  107 

praetors,  were  not  introduced  by  any  direct  acts  of  legisla- 
tion, repealing  what  was  established,  and  substituting  the 
new  ;  they  were  rather  quietly  accomplished  by  cautiously 
admitting  suitors  to  new  forms  of  action  in  prosecuting  their 
rights  and  remedies,  when  by  previous  forms  these  rights 
would  have  been  unrecognized,  and  the  remedies  unattain- 
able. The  employment  of  convenient  fictions  was  very  com- 
mon to  facilitate  this  beneficial  design,  such  as  the  feigning 
a  party  to  be  a  Roman  citizen,  when  he  in  fact  was  not. 

§  182.  The  occasion  if  not  the  cause  of  the  first  modifi- 
cation of  the  procedure,  was  the  publication  by  one  Cneeus 
Flavins,  a  plebeian  and  secretary  of  Appius  Claudius  Coccus, 
of  the  calendar  of  judicial  days,  upon  which  alone  actions 
could  be  commenced,  and  of  the  book  of  legis  actiones,  or 
forms  of  procedure  before  the  magistrates.  Before  this 
epoch,  the  knowledge  of  these  all  important  subjects  was 
carefully  retained  by  the  patrician  augurs.  A  subsequent 
disclosure  of  the  same  character  made  by  the  ^lianian  Law 
completed  the  destruction  of  the  old  machinery  of  legis 
actiones,  which  I  have  already  described,  and  they,  with  all 
their  arbitrary  and  oppressive  technicalities  were  aban- 
doned. In  their  place  was  substituted  the  proceeding  by 
formulas^  although  the  term  action  is  still  retained  by 
writers  on  the  Roman  Law. 

§  183.  The  formula  commenced  with  a  part  called  the 
"  Demonstration  "  (demonstratio),  which  contained  a  short 
statement  of  the  plaintifi''8  cause  of  action.  This  was  fol- 
lowed by  the  "  Intention,"  (intentio),  which  was  a  more 
precise  and  formal  setting  forth  of  the  claim  and  the  facts 
upon  which  it  was  founded.  Following  the  intention,  the 
answer  of  the  defendant  was  placed,  which  might  be  a  sim- 
ple denial  of  the  plaintiff's  allegations,  and  would  only 
require  him  to  prove  therh.  In  many  cases,  however,  the 
party  prosecuted  was  permitted  to  offer  a  form  of  defence 
called  an  "  Exception "  (exceptio),  which,  admitting  the 
truth  of  the  statements  in  the  intention,  disclosed  other  facts 


108  THE   UNWRITTEN   LAW. 

sliowiDg  that  the  plaintiff  ought  not  either  in  strict  law  or 
by  the  principles  of  justice,  to  succeed  in  his  action.    As  an 
example  of  the  first  case,  the  defendant  might  plead  in  his 
exception,  that  the  obligation  had  been  cancelled  by  pay- 
ment ;  as  an  illustration  of  the  second,  he  might  charge  that 
the  contract  though  regular  in  form,  and  still  sub^&tiug,  was 
obtained  through  fraud  or  violence.     The  plaintiff  in  turn 
could  meet  this  exception,  if  necessary,  by  a  pleading  called 
the  "  Replication  "  (replicatio),  which  alleged  other  circum- 
stances, which  were  claimed  to  destroy  the  effect  of  the 
defendant's  answer.    The  latter  replied  by  a  "  Duplication  " 
(duplicatio),   and   thus   the  pleadings  might  be  extended, 
until  a  point  was  reached,  where  an  affirmation  on  the  one 
side  was  met  by  a  direct  denial  upon  the  other.     This  ter- 
mination of  the  allegations  of  the  parties,  which  the  English 
and   American   procedure   calls   the  joining  of  issue,  the 
Roman  lawyers  denominated  the  litis  contestatio.     After 
the  plaintiff  and  defendant  had  thus  met  in  a  definite  issue, 
the  next  division  of  the  formula  was  the  "  Adjudication  " 
(adjudicatio),  or  order  sending  the  cause  to  the  judge  (judex) 
for  decision  upon  the  facts  and  final  judgment,  and  the 
whole  closed  with  the  "  Condemnation  "  (condemnatio),  or 
interlocutory  decision,  which  settled  the  rule  of  law,  and 
directed  the  judgment  to  be  rendered  either  for  the  plain- 
tiff, upon  the  proof  of  the  facts  averred  by  him,  or  for  the 
defendant,  upon  the  failure  of  the  complainant  to  maintain 
his  case,  or  upon  the  establishment  of  the  defence  which  the 
praetor  had  allowed  to  be  incorporated  in  the  exception. 
All  the  proceedings  were  actually  written  down  by  the 
praetor,  or  his  secretary,  and  it  is  impossible  not  to  see  the 
striking  similarity  between  these  methods  and  those  which 
have  prevailed  in  the  English  and  American  courts  of  law. 
With  the  "  Condemnation,"  the  magistrate's  duties  ceased, 
and  the  cause  now  ready  for  trial  was  remitted  to  the  judex 
or  arbiter,  who  proceeded  with  it  in  the  manner  I  have 
already  described. 


CLASSES    OF    ACTIONS    IX    THE   ROMAN    LAW.  109 

§  184.  These  pleadings  were  common  to  all  the  actions 
which  were  allowed  by  the  ordinary  jurisdiction  of  the  prae- 
tor. The  element  which  differenced  the  classes  of  actions, 
consisted  in  the  facts  which  the  magistrate  allowed  to  be 
incorporated  in  the  intentio,  as  the  basis  of  the  relief 
claimed,  or  in  the  exceptio,  as  a  ground  for  defeating  the 
recovery. 

§  185.  From  the  earliest  period  actions  were  divided  into 
two  generic  classes,  real  and  personal.  Keal  actions  (ac- 
tiones  in  rem)  were  those  by  which  the  plaintiff  sought  to 
establish  a  title  or  ownership  to  some  particular  thing. 
Personal  actions  (actiones  in  personam)  were  brought  to 
enfoi'ce  some  legal  obligation  resting  upon  the  defendant, 
which  might  arise  from  contract,  or  matters  analogous  to 
contract  (ex  contractu,  or  quasi  ex  contractu)  or  from  a 
wi'ong,  or  matters  analogous  to  a  wrong  (ex  delicto,  or  quasi 
ex  delicto).  These  two  divisions  had  reference  to  the  object 
or  purpose  for  which  the  action  was  brought,  the  subject 
matters  involved  in  it,  and  the  remedy  prayed  from  the 
court.  In  personal  actions  the  remedy  was  generally  an 
award  of  damages. 

§  186.  At  the  earliest  periods  all  contracts,  and  all  ac- 
tions to  enforce  them,  were  founded  upon  the  unbending 
provisions  of  the  lex  cimlis.  Originallj'-  then,  all  the  actions 
coming  within  the  praetor's  jurisdiction  were  those  allowed 
by  the  primitive  law,  and  for  which  there  were  prescribed 
and  well-known  formulas.  Such  actions  were  said  to  be 
"  of  strict  right,"  (stricti  juris).  The  plaintiff  could  only 
state  some  obligation  known  to  the  law,  in  the  technical 
manner  authorized  by  the  ancient  practice.  The  defendant 
on  the  other  hand  could  only  interpose  such  a  defence  as 
was  specially  appropriated  to  the  peculiar  obligation  stated 
in  the  intentio^  and  the  judex  could  not  go  beyond  these 
limits  in  his  decision. 

§  187.  All  this  would  answer  for  the  civilization  of  the 
Romans  during  the  earlier  periods  of  the  republic,  with  no 


110  THE   trNWEITTElSr   LAW. 

commerce,  manufactures,  arts,  letters,  or  philosophy,  but 
onlj  war  and  agriculture  as  tlie  occupations  of  the  people. 
But  witli  the  successful  wars  and  continual  conquests,  a 
vast  influx  of  foreigners,  now  subjects  of  the  state,  poured 
into  Rome,  bringing:  with  them  their  own  national  customs 
and  ideas  of  law  and  right.  Intercourse  with  these  new 
residents  and  with  the  inhabitants  of  the  provinces,  and  the 
growing  commerce  incident  upon  the  flourishing  and  ex- 
panding condition  of  the  commonwealth,  not  only  mitigated 
the  stern  notions  of  the  citizens,  but  also  fmniished  occasion 
for  new  varieties  of  contracts  and  obligations,  and  these  in 
time  demanded  new  forms  of  action  and  remedy.  The 
organs  of  the  lex  civilis,  the  assemblies  of  the  people,  the 
senate  decrees,  and  the  opinions  of  the  jurists,  to  a  certain 
extent  yielded  to  this  influence,  and  efi'ected  some  changes 
in  the  character  of  legal  rules ;  but  as  popular  assemblies 
and  legislative  bodies  can  never  keep  that  even  pace  with 
the  gradual  advance  of  commerce  and  of  civilization,  which 
shall  ensure  a  steady  growth  of  the  law  suited  to  the  wants 
of  the  body  politic,  it  was  left  to  the  magistrates  to  introduce 
most  of  the  improvements  both  in  doctrines  and  in  pro- 
cedure which  were  demanded  by  the  prosperity  of  the 
State. 

§  188.  At  what  precise  date  most  of  these  judicial  relax- 
ations of  the  old  sternness  were  made,  cannot  be  stated. 
One  of  the  most  important  consisted  in  softening  the  rigor 
of  the  actions  stricii  juris,  and  taking  a  class  of  legal  obli- 
gations entirely  out  from  them,  and  forming  a  new  species 
of  action  for  their  enforcement.  The  praetor  began  by  per- 
mitting the  defendant  to  plead  facts  in  his  exception,  which, 
although  they  did  not  form  the  approj)riate  defence  recog- 
nized by  the  existing  law,  yet  showed  that  it  would  be  in- 
equitable to  compel  the  performance  of  the  obligation. 
These  defences  were  at  first  not  absolutely  forbidden  by  the 
ancient  rules,  they  were  only  unprovided  for.  The  excep- 
tion being  admitted  by  the  magistrate  into  the  formula,  the 


NEW   ACTIONS    INVENTED   BY   THE   PR^TOKS.  Ill 

judex  was  compelled  to  notice  it  in  his  decision.  The  inno- 
vation was  originally  made  in  extreme  cases,  to  prevent 
plain  injustice,  but  it  grew  to  be  a  general  custom.  The 
new  class  of  actions  which  grew  out  of  this  relaxation,  were 
called  honce  fidei.  They  were  used  to  enforce  obligations 
which  were  mutual  in  their  nature.  They  required  no  spe- 
cial exception  in  the  formula,  but  the  prgetor  added  the 
direction  that  the  judge  should  do  what  was  right  between 
the  parties.  The  judex,  or  arbiter  as  he  was  then  called, 
following  this  general  command,  took  into  account  all  the 
circumstances  which  would  either  increase  or  lessen  the 
defendant's  liability,  having  regard  to  considerations  of 
good  faith  and  equity.  Thus  he  would  allow  a  counter 
claim  arising  out  of  the  same  transaction  in  favor  of  the 
defendant,  or  interest  on  his  demand  to  the  plaintiff",  or 
would  declare  the  obligation  void  if  it  were  tainted  with 
fraud  or  force,  even  though  these  two  facts  had  not  been 
relied  upon  by  the  pleadings.  Thus  we  have  arrived  at 
two  important  divisions  of  actions  founded  on  contract 
those  stricti  juris,  and  those  hoitcB  fidei. 

§  189.  In  pm'suance  of  the  judicial  policy  of  enlarging 
the  scope  of  the  municipal  law  through  new  and  adequate 
remedies,  the  prsetor  made  another  invasion  upon  the  arbi- 
trary forms  of  the  ancient  lex  civilis.  Cases  would  arise 
"unprovided  for,  either  by  the  letter,  or  by  the  spirit  of  the 
ancient  rules.  With  those  not  exactly  within  the  letter, 
but  yet  within  the  spirit,  his  task  was  easy  and  natural. 
The  end  was  attained  by  enlarging  the  recognized  actions 
and  remedies,  and  building  up  others,  not  original  in  prin- 
ciple, but  more  comprehensive  and  extended  in  detail. 
Such  were  actions  proesGriptis  verbis. 

§  190.  But  the  magistrate  was  called  upon  to  adopt  a 
more  decided  approach  towards  actual  legislation.  Com- 
plications began  to  arise  from  the  intricacy  of  business,  and 
from  the  increasing  disposition  of  owners  about  to  die  to 
divert  their  estates  from  the  well-known  and  simple  rules 


112  THE    UN W KITTEN    LAW. 

of  descent,  which  presupposed  actions  and  remedies  not 
only  unprovided  for,  but  actually  opposed  by  the  letter  and 
spirit  of  the  old  law.  Here  came  in  play  the  peculiar  func- 
tion of  the  prgetor  (which,  by  its  extent  and  importance  has 
quite  hidden  his  other  acts  in  developing  the  law),  that  of 
doing  equity  between  the  parties,  when  the  strict  rules  of 
the  ancient  code  would  have  worked  manifest  injustice. 
He  was,  indeed,  to  use  English  terms,  a  law  judge  and  a 
chancellor  ;  he  introduced  and  built  up  a  system  of  equity 
interfusing  the  law,  and,  at  the  same  time,  he  moulded  the 
stern  doctrines  of  the  civil  law  itself  into  a  closer  agreement 
with  ethical  principles  and  the  wants  of  the  passing  ages, 
until  finally  both  were  merged  and  combined  into  one  sys- 
tematic code.  He  did  this  by  inventing  and  using  equi- 
table actions,  called  actiones  in  factum^  characterized  by  no 
particular  forms,  each  depending  upon  its  own  particular 
circumstances.  All  this  was  not  the  work  of  a  generation 
nor  of  a  century.  Thus  one  of  the  most  important  of  these 
equitable  actions  was  not  introduced  until  the  reign  of  the 
Emperor  Nero,  that  which  was  used  to  enforce  fidei  com- 
missa  or  trusts.  A  custom  had  grown  up  of  evading  the  laws 
of  descent,  by  leaving  an  estate  by  last  will  to  one  person, 
with  a  confidence  reposed  in  him,  that  he  would  deliver  the 
property  to-  another,  whom  perhaps  the  strict  law  would 
not  allow  to  receive  it  from  the  testator.  This  disposition 
of  an  estate  was  called  fidei  commiasa,  or  in  modern  lan- 
guage, a  trust.  Made  as  a  doubtful  experiment,  it  became 
a  very  general  practice,  and  tlie  prastor  gave  an  action  to 
the  person  for  whose  benefit  the  arrangement  was  made, 
against  the  one  actually  receiving  the  property,  to  compel 
him  to  carry  out  tlie  wishes  of  the  deceased,  and  deliver  the 
inheritance. 

§  191.  Another  very  important  class  of  proceedings  in- 
troduced by  the  praetors  in  aid  of  the  equitable  interests  of 
parties,  were  interdicts  and  restitutions,  for  the  prevention 
of  injuries,  or  the  restoration  of  persons  to  rights  which  they 


ACTIONS   IN   ENGLISH   AND    AMERICAN   LAW.  113 

had  lost.  These  were  issued  by  the  magistrates,  in  a  some- 
what summary  way,  without  the  aid  of  the  judex,  and  at 
length  became  even  more  common  than  actions.  Modern 
courts  of  chancery  have  adopted  the  interdicts  under  the 
name  of  injunctions, 

§  192.  I  have  dwelt  thus  at  considerable  length  upon 
this  portion  of  Roman  legal  history,  because  it  serves  to 
illustrate  in  a  striking  manner  that  of  England.  When  we 
come  to  view  the  progress  of  jurisprudence  in  the  latter 
country,  we  shall  discover  the  same  causes  at  work,  in  an 
identical  manner,  the  judges  yielding  to  the  demands  of 
the  times  and  the  wants  of  suitors,  inventing  new  fonns  of 
legal  remedy,  and  thus  suffering  the  law  to  flow  on  into 
new  and  ever  widening  channels. 

§  193.  We  have  traced  the  gradual  formation  of  the 
English  law  courts,  and  the  progress  of  the  jury  trial 
through  its  successive  stages,  as  an  essential  element  of 
those  courts.  I  now  propose  to  show  in  what  manner  these 
tribunals  have  contrived  the  different  forms  of  judicial  ac- 
tions, through  which  civil  remedies  are  attained  and  crim- 
inal offences  are  punished.  I  shall  then  trace  the  same 
process  in  the  courts  of  chancery,  and  therein  show  the  rise 
and  growth  of  the  rules  of  equity  as  distinguished  from  and 
supplemental  to  those  of  the  technical  law. 

II.  Of  the  Origin^  Classes,  and  Uses  of  Actions  in  Courts 

of  Law. 
§  194.  1.  C'tml  Actions. — In  the  English  and  American 
Law,  as  well  as  in  that  of  Rome,  an  action  in  its  general 
sense  is  an  ordinary  formal  proceeding  in  a  court  of  justice 
between  two  parties,  for  the  protection  or  enforcement  of 
a  right  which  the  law  permits  to  be  protected  and  enforced. 
This  definition  includes  all  those  proceedings  brought  at 
the  instance  of  a  private  individual  or  of  the  State  to  re- 
strain or  redress  or  punish  tlie  commission  of  a  wrong,  for 
these  assume  a  right  on  the  part  of  the  plaintiff  wiiich  is 
8 


11-i  THE   UNWKirrEN   LAW. 

thus  i^rotected  and  enforced.  In  general  the  person  who  is 
the  moving  party  in  an  action  is  called  the  plaintiff,  and 
the  person  proceeded  agaiust  the  defendant. 

Witli  the  Xonnan  conquest,  as  I  have  already  stated, 
the  idea  was  introduced  that  the  king  was  the  fountain 
of  justice  to  his  subjects.  This  may  be  said  still  to  be 
the  theory,  and  for  generations  it  was  strictly  true  in 
practice.  From  a  very  early  period  under  the  ISTorman 
kings,  no  person  could  commence  an  action  in  one  of  the 
superior  courts  of  law,  without  the  sanction  of  a  king's 
writ,  which  was  a  formal  writing  in  the  royal  name,  and 
bearing  his  seal,  requiring  the  defendant  to  appear  and 
answer  to  the  plaintiff's  complaint,  and  giving  jm'isdiction 
to  the  court  to  try  the  particular  case.  It  must  not  be  sup- 
posed that  these  writs  were  actually  issued  by  the  king,  but 
their  allowance  was  under  the  direct  supervision  of  his 
highest  officer,  who  had  charge  of  the  state  seals,  the  chan- 
cellor. These  writs  were  all  drawn  in  accordance  with  the 
well-known  and  recognized  rules  of  the  law,  stating  briefly 
the  nature  of  the  complaint  and  the  circumstances  upon 
which  the  claim  for  relief  was  founded.  If  the  facts  alleged 
by  the  plaintiff  brought  his  action  within  some  ordinary 
and  recognized  principle,  for  which  a  writ  had  been  already 
devised,  he  could  obtain  the  process  from  the  chancellor  as 
a  matter  of  course,  by  the  payment  of  the  requisite  fees. 
"When  the  ease  was  entirely  new,  and  no  writ  had  been 
framed  applicable  thereto,  the  deficiency  might  be  supplied 
by  the  king  and  royal  council.  The  actual  drawing  up  and 
preparing  these  important  proceedings  was  confided  to  a 
number  of  special  clerks,  connected  with  the  chancellor, 
who  were  not  merely  scribes,  but  men  learned  in  the  law. 
Such  continued  to  be  the  practice  down  to  the  thirteenth 
year  of  the  reign  of  Edward  I.,  when  a  statute  was  passed 
whose  effect  was  greatly  to  enlarge  the  number  of  these 
oi-iginal  writs,  and  increase  the  scope  of  legal  remedies.  But 
a  description  of  this  change  belongs  more  intimately  to  the 


COMMENCEMENT   OF    AN   ACTION.  115 

subject  of  forms  of  action,  and  is  deferred  until  that  is 
reached.  These  writs  were  the  very  foundation  of  all  sub- 
sequent judicial  proceedings.  No  action  could  be  com- 
menced and  maintained,  unless  it  was  based  upon  a  writ 
specially  adapted  to  its  form  and  object.  This  method  of 
instituting  a  suit  ccmtinued  in  England  for  a  long  time,  but 
has  been  superseded  by  a  more  simple  process. 

§  195.  In  tlie  United  States,  the  original  writ  issued 
from  the  government  has  never  been  used,  but  actions  were 
formerly  begun  in  most  of  the  older  States,  by  a  process 
granted  in  theory  by  the  court  in  which  the  cause  was 
brought.  The  tendency  towards  a  greater  degree  of  sim- 
plicity in  all  judicial  proceedings,  has  been  shown  from 
time  to  time  in  modifications  of  this  practice,  until  at  length 
in  New  York,  and  some  other  States  which  have  copied  its 
legislation,  the  principle  of  informality  has  been  reduced  to 
its  lowest  term.  By  their  recent  procedure,  the  theoiy  of 
administering  justice  in  the  name  of  the  State,  and  with  its 
sanction,  has  been  entirely  abandoned ;  a  party  is  informed 
that  an  action  is  commenced  against  him,  by  a  wi'iting, 
which  bears  and  requires  no  official  characteristic  from 
court  or  officer,  but  simply  the  signature  of  the  plaintiff  or 
his  attorney,  both  perhaps  alike  unknown  to  him,  and  is 
summoned  to  appear  and  defend  this  action  within  a  speci- 
fied number  of  days,  under  the  penalty,  that  a  judgment 
will  be  given  against  him  upon  his  failure  so  to  do.  That 
this  system  has  anything  to  recommend  it,  I  think  no  one 
will  claim.  In  commencing  those  solemn  judicial  proceed- 
ings, through  which,  by  the  aid  of  courts  and  juries,  the 
law  is  brought  to  bear  upon  individuals,  and  rights  are 
established,  and  property,  character,  and  Kberty  are  lost  or 
won,  the  voice  of  the  State  in  its  sovereign  capacity  should 
be  hear(^  ;  everything  should  not  be  left  to  the  honesty  and 
capacity  of  suitors  and  their  attorneys. 

§  196.  The  use  of  formal  actions  was  introduced  into 
England  with  the  gradual   consolidation  of  the   superior 


116  THE   UNWEITTEN    LAW. 

coui'ts  under  the  early  IsTorman  kings.  During  the  Saxon 
rule,  there  were,  properly  speaking,  no  actions ;  all  pro- 
ceedings were  informal  and  oral ;  but  the  more  matured 
ideas  of  the  conquerors  soon  found  an  expression  in  a  sys- 
tematized procedure,  of  which  the  essential  features  have 
been  retained  to  this  day. 

§  197.  At  the  earliest  period  of  their  existence,  actions 
were  divided,  as  in  the  Roman  Law,  into  real  and  personal. 
Real  actions  were  used  to  try  the  title  or  ownership,  not 
simply  the  right  of  possession,  to  lands  or  real  estate.  They 
had  a  general  resemblance  to  the  same  division  in  the 
Roman  procedure,  but  differed  from  them  in  being  confined 
to  a  single  species  of  property.  They  were  quite  unlike  the 
other  class  of  remedies  in  their  detail,  and  have  long  since 
been  abandoned.  As  their  place  has  been  supplied  by 
modifications  of  other  actions,  it  is  needless  to  occupy  our 
time  with  any  examination  of  their  methods. 

Personal  actions  were  those  which  enforced  obligations 
and  rights  growing  out  of  contracts  or  wrongful  acts,  and 
were  therefore  separated  into  actions  ex  contractu^  and  ac- 
tions ex  delicto.  As  I  have  already  stated,  these  actions 
were  founded  upon  the  original  writ,  and  none  could  be 
used  for  which  such  a  process  had  not  been  provided. 

§  198.  In  very  ancient  times  there  were  four  forms  of 
personal  action  which  might  be  commenced  in  the  superior 
courts  of  law,  two  of  them,  called  debt  and  co\enant,  being 
ex  contractu^  and  two,  trespass  and  detinue,  being  ex  delicto. 
The  action  of  debt  was  the  appropriate  one  in  which  to 
recover  a  sum  of  money  whose  amount  was  alr(iady  reduced 
to  a  certainty,  so  that  it  required  no  deliberation  or  assess- 
ment of  damages  to  ascertain  it.  The  action  of  covenant 
was  confined  to  the  recovery  of  damages  for  the  breach  of  a 
sealed  agreement  in  writing.  It  difl'ered  essentially  from 
debt,  in  that  it  required  the  afiirmative  action  of  a  jury  to 
decide  the  amount  of  these  damages.  The  action  of  tres- 
pass was  used  for  tlie  recovery  of  damages  resulting  from 


ANCIENT   FORIIS    OF   ACTION.  117 

acts  of  violence  done  to  the  person  or  property  of  the  plain- 
tiff, and  was  characterized  by  the  technical  description  in 
the  writ,  that  the  defendant's  acts  were  done  with  force  and 
arms,  vi  et  armis,  and  against  the  peace  of  our  lord  the  king. 
Detinue  w&s  a  proceedmg  for  the  recovery  of  specific  goods 
and  chattels  wrongly  detained  from  their  owner.  In  addi- 
tion to  these,  the  action  of  replevin  was  a  common  method 
of  obtaining  the  possession  of  certain  kinds  of  chattels,  being 
originally  confined  to  cattle,  but  it  was  always  commenced 
in  an  inferior  court. 

§  199.  From  this  sketch  of  the  ancient  forms  of  judicial 
proceeding,  it  will  be  seen  that  there  was  absolutely  no  pro- 
vision made  for  the  enforcement  of  a  vast  majority  of  the 
legal  rights,  which  are  now,  and  for  a  long  time  have  been, 
the  most  common  and  important.  All  breaches  of  contracts 
resting  in  mere  words,  and  of  those  in  writing  not  under 
seal,  unless  they  created  an  absolute  and  stipulated  debt, 
were  remediless.  All  obligations  arising  fi'om  the  mere  acts 
of  parties,  which  now  form  so  large  a  part  of  the  rights  that 
courts  enforce,  and  which  spring  out  ffom  the  plainest  prin- 
ciples of  justice  and  equity,  were  unrecognized.  All  rights 
resulting  from  deceit,  fraud,  and  other  wrongful  practices 
not  absolutely  forcible,  the  courts  passed  by  in  silence.  In 
this  state  of  legal  procedure  and  judicial  remedies,  we  can 
read  the  condition  of  English  civilization  at  that  early 
period.  We  see  lands  as  almost  the  sole  species  of  prop- 
erty possessing  a  recognized  value  ;  contracts  few  and  gen- 
erally reduced  to  writing,  and  formally  solemnized  by  a 
seal ;  a  people  rude  and  used  to  violence,  with  scarcely  any 
trade,  commerce,  or  manufactures. 

§  200.  But  the  courts  and  the  law  must  keep  pace  with 
the  culture  of  the  nation,  reflect  its  general  ideas,  and  pro- 
vide for  its  wants.  The  people  move  first ;  the  necessities 
arise,  dnd  the  law  responds  to  them.  The  demand  for  an 
enlargement  of  the  number  and  scope  of  legal  remedies, 
growing  out  from  the  increasing  complications  of  business 


lis  THE   UNWJRITTEN   LAW. 

became  so  pressing  that  in  the  thirteenth  year  of  Edward 
I.,  a  statute  Avas  passed  with  the  design  to  relieve  the  incon- 
venience by  providing  for  new  forms  of  writs,  and  conse- 
quently of  actions  based  upon  them,  without  the  delay  of 
an  application  to  the  king  and  council.  This  statute  en- 
acted that  "  Whenever  from  henceforth  it  shall  fortune  in 
chancery  that  in  one  case  a  writ  is  found,  and  in  like  case 
falling  under  like  law,  and  requiring  like  remedy,  is  found 
none,  the  clerks  of  chancery  shall  agree  in  making  the 
writs."  Thus  was  opened  the  way  for  new  actions  and  rem- 
edies to  apply  to  all  the  new  circumstances  which  could 
arise,  and  the  judges  were  not  slow  to  avail  themselves  of 
the  privilege,  because  it  afforded  an  opportunity  not  only 
to  do  prompt  and  substantial  justice  between  parties,  but 
also  to  enlarge  in  an  unlimited  manner  theii*  own  jurisdic- 
tion. 

§  201.  I  have  already  said  that  the  old  action  of  tres- 
pass, both  in  the  form  of  its  writs,  and  in  its  further  pro- 
ceedings, was  applicable  only  to  those  wrongs  which  were 
attended  by  actual  violence  (vi  et  armis).  The  first  act  ot 
the  chancery  officers  in  contriving  new  writs,  and  of  the 
judges  in  accepting  and  enforcing  them,  was  to  extend  this 
action  to  cases  where  the  injury  was  consequential  or  indi- 
rect, instead  of  being  the  direct  result  of  force,  and  hence 
arose  the  general  class  of  actions  since  known  as  Trespass  on 
the  Case.  These  were  at  first  ai3plied  in  cases  of  malfeor 
sance,  %vhere  a  person  had  been  guilty  of  an  absolute  wrong, 
had  done  something  which  he  ought  not  to  have  done,  and 
thereby  had  caused  damage  to  the  plaintiff.  Between  this 
beginning,  and  instances  of  misfeasance,  or  doing  in  a 
wrongful  manner,  what  ought  to  have  been  done  well,  the 
division  was  shadowy,  the  step  M-as  short  and  easy,  and 
soon  taken.  When  this  point  was  reached  the  courts  found 
themselves  able  to  entertain  actions  not  only  for  acts  of 
violence,  but  for  fraud,  deceit,  carelessness,  neglect,  and 
the  like. 


NEW   ACTIONS   INVENTED   BY   JUDGES.  119 

§  202.  As  yet  there  was  no  remedy  for  the  breach  of 
those  contracts  which  could  not  be  enforced  by  the  actions 
of  covenant  or  debt.  To  supply  this  want,  the  courts,  still 
retaining  the  idea  of  the  wrong  done  by  the  defendant,  so 
as  to  preserve  the  theoretical  connection  with  the  primitive 
action  of  trespass,  extended  the  new  form  of  proceeding  to 
include  the  case  of  nonfeasance^  or  that  in  which  a  person 
had  failed  or  refased  to  perform  what  he  had  actually  or 
impliedly  promised  to  do.  This  step  in  advance  produced 
the  action  of  assumpsit,  which  grew  to  be  the  most  common 
and  important  judicial  method  of  enforcing  legal  rights.  It 
includes  all  those  cases  in  which  a  contract  or  an  obligation 
in  the  nature  of  a  contract  is  inferred  by  the  law  from  the 
acts  of  parties,  as  well  as  those  in  which  the  terms  of  a  defi- 
nite agreement  prescribe  and  determine  their  liabilities. 

§  203.  The  course  of  reasoning  which  extended  the 
remedy  of  Trespass  on  the  Case,  which  I  have  just  de- 
scribed, to  simple  contracts,  was  more  subtle  than  natural. 
The  relations  of  the  parties  resulting  from  their  original 
agreements,  were  overlooked,  and  the  idea  of  the  failure 
of  duty,  and  therefore  of  wrong,  in  neglecting  to  comply 
with  the  obligation,  was  made  prominent,  as  the  founda- 
tion of  the  action.  Although  in  its  origin,  the  action  of 
assumpsit  thus  partook  rather  of  the  character  of  an  ex 
delicto  remedy,  it  has  for  a  long  time  been  regarded  entirely 
as  within  the  class  of  those  tx  contractu.  By  its  means  a 
very  large  portion  of  the  modern  mercantile  and  commer- 
cial law,  has  been  added  to  the  jurisprudence  of  England 
and  America.  It  is  eminently  an  equitable  form  of  remedy, 
quite  analogous  to  those  })once  fidei  of  the  Roman  pro- 
cedure. It  is  used  in  a  very  extensive  class  of  cases  which 
are  of  every-day  occurrence  ;  as  when  the  plaintiff  sues  for 
work  and  labor  done  by  him,  at  the  request  of  tlie  defend- 
ant ;  dr  for  goods  sold  and  delivered  to  the  defendant ;  or 
for  money  had  and  received  by  the  defendant  for  the  plain- 
tiff's  use ;  or  for   money  laid   ont   and   expended   at  the 


120  THE   UNWRITTEN   LAW. 

defendant's  request.  In  each  of  these  instances  the  law 
implies  an  assumpsit,  or  promise  on  the  part  of  the  defend 
ant,  to  make  reparation,  and  under  some  one  of  them^ 
almost  all  of  the  ordinary  transactions  of  business  can  be 
brought. 

§  204.  Two  other  actions  were  invented  by  the  judges, 
subsequent  to  the  statute  I  have  mentioned,  which  have 
become  important  in  the  development  of  the  law.  The 
one  is  called,  Trover,  and  is  used  to  test  tlie  title  or  owner- 
ship to  articles  of  personal  property  ;  the  other  is  Ejectment, 
which  is  employed  to  try  the  title  to  lands.  The  former 
soon  supplanted  the  old  remedy  of  Detinue,  from  its  greater 
simjilicity  and  convenience.  Its  peculiar  name  is  derived 
from  the  Norman  word,  which,  in  the  old  forms,  character- 
ized it  by  the  use  of  a  fiction.  The  plaintifi"  was  made  to 
allege  that,  being  the  owner  of  a  certain  chattel,  he  casually 
lost  it,  and  the  defendant  having  found  it  (Trouver),  refused 
to  deliver  it  back.  This  charge  of  losing  and  finding,  the 
defendant  was  not  pei-mitted  to  deny,  which  left  the  ques- 
tion of  ownership  the  only  one  to  be  determined.  The  relief 
granted,  however,  was  pecuniary  damages,  not  the  possession 
of  the  property.  The  action  of  Ejectment  entirely  drove 
the  old  and  cumbrous  Ileal  Actions  from  the  field,  and 
became  in  England  and  America  the  only  means  of  testing 
a  claim  to  real  property.  It  also  was  based  npon  a  number 
of  curious  fictions  invented  by  the  courts  to  work  justice, 
and  at  the  same  time  to  save  them  from  actually  in  terms 
abolishing  existing  rules  and  forms. 

§  205.  After  the  judicial  procedure  became  settled, 
down  to  a  recent  period  in  England,  and  in  many  or  most 
of  the  American  States,  the  following  actions,  which  I  have 
already  described,  were  in  constant  use  in  the  courts  of 
law,  as  the  instruments  by  which  private  rights  were 
enforced  and  private  wrongs  punished.  Trespass  to  recover 
damages  for  a  wrongful  act  of  violence  to  a  man's  person 
or  property ;  Trespass  on  the  Case,  to  recover  damages  for 


MODERN    KEF0KM8.  121 

a  wrong  unaccompanied  by  actual  violence,  or  when  the 
injury  was  consequential,  thus  including  a  vast  number  of 
particular  instances  ;  Covenant,  to  recover  damages  for  the 
breach  of  a  sealed  agreement  in  writing  ;  Debt,  to  recover  a 
fixed  certain  sum  owed  by  the  defendant,  not  as  damages ; 
Assumpsit,  to  recover  damages  for  a  contract  not  sealed, 
whether  written  or  verbal,  express  in  its  terms  or  implied 
by  the  law ;  Trover,  to  recover  damages  for  the  unlawful 
detention  of  personal  property  ;  Iiej>levin,  to  recover  the 
possession  of  specifi.c  articles  of  personal  property ;  and, 
Ejectment,  to  recover  possession  of  lands,  and  try  the  title 
or  ownership  thereto.  I  draw  particular  attention  to  the 
fact,  that,  in  all  of  these  actions  but  the  last  two,  the  satis- 
faction demanded  by  the  complaining  party  was  a  sum  of 
money,  and  that  with  the  exception  of  the  single  action  of 
Debt,  this  was  awarded  in  the  form  of  damages,  to  be  settled 
by  the  jury.  This  circumstance  is  important  in  its  bearing 
upon  the  origin  and  rapid  increase  of  business  in  the 
Court  of  Chancery,  which  was  restricted  by  no  such  rule,  in 
its  administration  of  justice.  Many  other  special  proceed- 
ings were  also  in  use,  which,  however,  it  is  not  necessary  to 
specify. 

§  206.  The  actions  which  I  have  mentioned  being  in 
full  force  in  England,  were  adopted  by  the  American 
States,  and  still  remain  in  some  of  them.  The  progress 
of  legal  reform,  however,  has  lately  swept  away  much  of 
these  technical  contrivances.  In  England,  many  changes 
have  been  made,  which  greatly  affect  the  proceedings  in  an 
action,  but  the  essential  features  and  classes  yet  exist.  In 
Bome  American  States  the  whole  structure  has  been  over- 
thrown, and  the  foundations  ploughed  up,  so  that  not  one 
Btone  is  left  upon  another.  Recent  statutes  of  New  York, 
based  upon  the  constitution  of  1846,  have  abolished  all 
forms  of  legal  action,  as  well  as  all  the  methods  of  proceed- 
ing in  the  ancient  Court  of  Chancery,  and  instituted  one 
instrument   for   the   ordinary   enforcement   of   all   private 


122  THE   UNWKITTEN   LAW. 

rights,  termed  a  Civil  Action.  Many  other  States  have 
imitated  the  example  set  them  by  the  gr^at  eoinmonwcaUh 
of  Xew  Yoriv.  We  have  thus  reenactod  the  legislation 
of  Rome,  which  in  its  latest  days,  reduced  all  forms  of  judi- 
cial procedure  to  one,  and  have  given  another  illustration 
of  the  fact  that  nations  and  institutions  repeat  themselves  in 
endless  cycles. 

§  207.  These  forms,  which  have  been  cast  out  as  uselesr 
and  cumbersome  rubbish,  although  they  had  perhaps  be 
come  clogs  upon  the  free  activity  of  the  law,  and  the  op- 
erations of  business,  were  once  the  most  important  aids  in 
promoting  both.  Every  student  of  law  should  remember 
that  they  were  invented  to  promote  justice,  to  amplify  the 
remedies  open  to  suitors,  to  extend  the  power  of  the  courts 
in  doing  the  right  between  parties  ;  and  that,  while  having 
subserved  this  purpose,  they  are  now  laid  aside,  they  are 
entitled  to  their  meed  of  respect  and  praise  for  the  good 
they  have  accomplished  in  times  past. 

§  208.  The  classes  and  appropriate  uses  of  legal  actions 
having  been  defined,  I  shall  now  state  the  successive  steps 
which  were  taken  in  them  to  reach  a  decision  ;  and  that 
first  in  order  is  the  method  of  presenting  tlie  statements  of 
facts  from  which  the  legal  rights  and  liabilities  of  the  par- 
ties are  supposed  to  spring,  and  which  are  denominated  the 
Pleadings, 

§  209.  In  very  early  times,  after  the  Norman  conquest, 
and  before  the  courts  were  entirely  consolidated  and  the 
procedure  settled,  these  statements  were  oral.  The  de- 
fendant appearing  before  the  judge  in  answer  to  the  writ, 
the  plaintiff  publicly  I'eeounted  his  grievances,  and  if  they 
were  sufficieiit  to  create  a  liability,  the  defendant  was 
forced  to  admit,  deny  or  excuse  them.  This  primitive 
proceeding  is  still  retained  in  our  courts  of  the  Justices  of 
the  Peace.  Soon,  however,  the  judges  required  the  pleadiiigs 
to  be  made  in  writing  and  more  formal  and  comprehensive. 
Copying  without  doubt  tVoni  the  Roman  procedure,  they 


PLEADINGS   IN    AN   ACTION.  123 

established  a  system  siinilar  to  that,  in  all  of  its  essential 
features.  The  plaintifl'  presented  the  facts  of  his  claim  in  a 
writing,  called  the  Declaration,  which  took  the  place  of 
the  Eoman  Intentio.  To  this  the  defendant  answered  by 
a  plea,  which  might  be  a  short  and  simple  denial  of  the 
facts  averred  by  the  plaintiff,  and  was  then  termed  the 
General  Issue.  Thus  in  the  action  of  Trespass,  and  some 
others,  he  answered  that  he  was  not  guilty  of  the  wrongs 
charged  against  him  ;  in  that  of  Assumpsit,  that  he  had 
not  made  the  promises  stated  in  the  declaration  ;  in  that  of 
Debt,  that  he  was  not  indebted.  This  allegation  on  the  one 
part,  and  denial  on  the  other,  formed  what  the  English 
lawyers  called  the  Issue,  being  the  same  as  the  Litis  Con- 
testatio  of  the  Koman  practice.  The  defendant  on  the  other 
hand,  might,  by  his  plea,  admit  the  facts  recited  by  the 
plaintiff,  and  in  turn  affirmatively  set  forth  other  circum- 
stances which  would  relieve  him  from  his  liability.  Tiiis 
species  of  plea  is  analogous  to  the  Exceptio  of  the  Eoman 
lawyers.  The  plaintiff*  in  answer  to  this  new  statement, 
could  either  simply  deny  it,  or  if  necessary  admit  it,  and 
reply  other  facts  which  showed  the  obligation  to  be  still 
subsisting.  How  far  these  alternate  pleadings  should  go, 
depended  entirely  upon  the  peculiar  circumstances  of  each 
case ;  they  always  proceeded,  however,  until  a  fact  was 
alleged  on  the  one  side  and  denied  by  the  other,  on  the 
decision  of  which  the  whole  cause  depended. 

§  210.  All  this  is  natural,  simple  and  logical.  There  is 
nothing  in  it  arbitrary  or  technical.  It  is  only  the  requiring 
parties  to  tell  their  stories  in  an  orderly  and  methodical 
manner,  with  all  unnecessary  detail  stripped  off,  so  that 
the  real  point  in  dispute  shall  be  eliminated  and  clearly 
placed  before  thejury,  for  their  decision. 

I  have  said  tliat  this  system  of  pleadings  was,  without 
doubt,  ^derived  fi'om  the  Roman  formulas.  The  resem- 
blance is  too  striking  to  be  accidental.  The  English  judges, 
for  a  long  time  under  the  Norman  Kings,  were  drawn  from 


124-  THE   UNWRITTEN   LAW. 

the  Ecclesiastics,  who  througliout  Europe  were,  as  a  body, 
versed  iu  the  principles  and  details  of  the  Roman  law.  In 
forming  the  technical  procedure  for  their  courts,  they 
naturally  borrowed  what  was  ready  made  to  their  hands, 
instead  of  inventing  new  methods. 

§  211,  Certain  general  principles  of  pleading  were  adopt- 
ed by  the  judges  expressly  to  preserve  its  simplicity  and 
efficacy.  But  these  salutary  laws  in  the  process  of  time 
became  subdivided  into  a  great  number  of  particular  rules ; 
extreme  nicety  was  required  ;  the  form  grew  to  be  of  more 
consequence  than  the  substance  of  a  controversy ;  rights 
were  lost  by  the  omission  or  improper  use  of  a  phrase  or 
word  ;  the  original  unity  and  conciseness  were  replaced  by 
a  vast  amount  of  difi'use  verbiage,  which  only  covered  up 
and  concealed  the  essential  facts,  instead  of  displaying  them 
in  clearer  light ;  in  short,  the  system  of  pleading,  from  its 
verbal  refinements,  its  technicalities,  and  its  deference  to 
forms,  became  a  source  of  continual  and  glaring  injustice. 
Modern  statutes,  while  retaining  the  essential  ideas,  have 
restored  much  of  the  theoretical  directness  and  natural 
order  in  England. 

§  212.  In  America,  the  same  methods  of  pleading  were 
adopted,  the  same  perversion  took  place,  followed  by  the 
same  evil  consequences.  Here,  however,  the  i-eform  has 
been  more  radical ;  it  is  still  a  question  whether  it  will 
prove  as  beneficial.  With  the  forms  of  action,  the  State  of 
New  York  has  discarded  the  English  system  of  pleading, 
and  substituted  another  entirely  unique.  The  plaintiff 
states  the  facts  constituting  his  cause  of  action  in  a  com- 
plaint, which  must  set  forth  his  story  in  plain  and  ordinary 
language.  The  defendant  responds  in  an  answer,  which 
contains  whatever  constitutes  his  defence,  whether  mere 
denial  or  legal  excuses.  No  endeavor  is  made  to  aid  the 
jury  by  bringing  out  the  important  facts,  and  reducing  the 
controversy  to  a  single  question,  but  they  are  left  to  perform 
tlie  labor  themselves  which  the  old  system  required  to  be 


ENGLISH    CRIMINAL    ACTIONS.  125 

done  for  them.  I  am  strongly  of  the  opinion,  tliat,  in  our 
disgust  at  mere  verbal  technicalities,  we  have  swune  into 
the  opposite  extreme,  and  that  the  English  reforai  legisla- 
tion, by  pruning  off  the  excrescences,  but  retaining  what  is 
natural  and  good  of  the  former  methods,  has  been  wiser 
than  ours. 

§  213,  2.  Criminal  Actions. — A  statement  of  the  pro- 
ceedings in  criminal  cases,  will  complete  our  survey  of  the 
actions  and  pleadings  peculiar  to  those  English  and  Ameri- 
can courts  which  use  the  jury  trial.  These  remain  in 
both  countries  substantially  as  they  have  existed  for  genera- 
tions. There  is  one  form  of  criminal  action,  and  that  is 
simple  and  concise.  The  offender  may  be  arrested,  exam- 
ined and  committed  to  custody  by  a  magistrate,  but  this  is 
not  indispensable.  The  first  essential  step  of  the  action 
commences  with  the  Grand  Jury.  This  body  of  substan- 
tial citizens  of  a  county  assembles  as  an  integral  part  of  a 
criminal  court,  is  sworn  to  secrecy  and  faithfulness,  and 
proceeds  to  investigate  whatever  charges  may  be  laid 
before  it,  or  may  be  within  the  knowledge  of  its  members 
This  inquiry  is  of  course  ex  parte,  and  is  satisfied  with  dis- 
covering a  case  of  probable  guilt  against  a  person  accused. 
If  the  testimony  presented  to  them  be  sufiiciently  strong 
to  warrant  a  formal  and  official  charge  of  crime  against 
the  suspected  party,  that  charge  is  embodied  in  an  Indict- 
ment, which  is  the  only  pleading  on  the  part  of  the  State, 
and  which  sets  forth  in  direct  terms  the  alleged  offence, 
with  the  time  and  place  of  its  commission.  This  instru- 
ment, duly  authenticated  by  the  grand  jury,  is  delivered 
to  the  court,  and  thus  not  only  initiates  the  action  by  giv- 
mg  the  court  jurisdiction  over  the  person  of  the  criminal, 
but  is  also  the  pleading  which  contains  the  necessary  facts 
to  acquaint  the  defendant  with  the  crime  charged  against 
him.  To  this  indictment  he  must  answer  either  by  confes- 
sion or  denial.  In  the  great  majority  of  cases  his  pleading 
is  oral,  and  consists  simply  of  the  words  "  !N'ot  guilty." 


126  THE   UNWRITTEN   LAW. 

§  214.  Tlie  indictment  itself  must  conform  to  some  gen- 
eral rules  which  were  adopted  to  secure  certainty  and  order 
in  its  charges,  so  that  the  criminal  may  be  fully  apprised 
of  the  nature  of  the  accusation.  These  rules  may  have 
been  carried  to  an  unnecessary  degree  of  refinement,  but 
they  have  only  been  so,  in  favor  of  life  and  liberty.  The 
salutary  principle,  lying  as  one  of  the  foundation  stones  of 
the  criminal  law  of  England  and  America,  that  the  prisoner 
shall  be  apprised  of  the  oftence,  so  that  he  may  make  due 
preparation  to  meet  it,  has  been  carefully  guarded  by  the 
courts,  by  requiring  that  the  indictment  shall  state  a  single 
crime ;  that  this  shall  be  described  with  all  possible  cer- 
tainty as  to  time  and  place ;  that  the  person  injured  or 
property  invaded  shall  be  correctly  set  forth ;  and  that  the 
guilty  intent,  which  is  the  essence  of  the  offence,  shall  be 
distinctly  charged. 

§  215.  The  innovating  hand  of  reform  has  not  as  yet 
touched  the  long-established  proceedings  in  criminal  ac- 
tions, nor  does  it  seem  possible  to  contrive  a  system  which 
shall  better  caiTy  out  the  ideas  upon  which  our  penal  law 
is  founded.  The  Grand  Jnry  carefully  preserved  by  our 
^National  and  State  Constitutions,  appears  to  be  an  invinci- 
ble barrier  against  official  oppression,  by  making  the  private 
citizens  themselves  the  originators  of  all  important  accusa- 
tions ;  the  indictment  is  a  safeguard  against  unfair  conceal- 
ments and  surprises  on  the  trial ;  while  tlie  jury,  who  must 
pass  upon  the  question  "of  guilt  or  innocence,  being  drawn 
from  the  people,  will  naturally  strive  at  once  to  preserve 
the  law  inviolate,  and  shield  the  prisoner  from  injustice. 
"Whether  the  ideas,  whicli  are  wrought  out  by  this  judicial 
machinery,  are  in  themselves  the  best  conceptions  of  the 
relations  existing  between  the  criminal  and  the  State,  is,  I 
tliink,  a  question  involved  in  more  doubt  than  English  and 
American  writere  have  generally  admitted. 

§  216.  A  short  account  of  the  procedure  in  some  of  the 
European  countries,  will  enable  the  student  to  make  an 


GEKMAN   CKIMINAL    PEOCEEDIXGS.  127 

interesting  comparison  between  other  national  methods  and 
om'  own. 

As  a  type  of  the  practice  in  criminal  cases  of  the  German 
States,  I  will  briefly  describe  that  of  Bavaria.  In  their  courts 
there  are  no  jm*ies.  Their  judicial  officers  are  separated 
into  two  classes  whose  functions  are  entirely  different, — the 
judges  who  examine  and  take  the  proofs,  and  the  judges 
proper  who  decide.  The  former  class  combine  in  part  the 
duties  of  our  examining  and  committing  magistrates,  prose- 
cuting or  State  attorneys,  grand  juries  and  poKce  detectives. 
There  is  nothing  analogous  to  the  investigation  by  a  grand 
jury,  and  the  finding  by  them  of  an  indictment.  Ko  formal 
complaint  or  written  accusation  is  made  the  basis  of  the 
proceeding.  "When  a  crime  is  discovered  and  brought  to 
the  knowledge  of  the  examining  judge,  he  immediately 
begins  to  collect  the  evidence  bearing  upon  it.  We  will 
suppose  that  a  homicide  is  under  investigation.  The  first 
step  is  to  have  a  careful  detail  made  of  the  entire  phj'sical 
appearance  of  the  dead  body,  and  of  the  place  where  it  is 
found,  and  where  the  crime  was  apparently  committed. 
In  conducting  this  examination,  the  utmost  caution  and 
accuracy  are  employed,  which  the  nature  of  the  place, 
and  the  circumstances  and  character  of  the  crime  will 
admit.  Nothing  is  left  to  the  mere  memory  of  the  wit- 
nesses who  may  have  been  casually  present  at  the  scene 
when  the  discovery  was  made.  So  minute  is  the  examina- 
tion that  footprints  are  often  preserved  by  plaster  casts,  so 
as  to  be  useful  in  identifying  a  suspected  person  by  his 
tracks.  Should  the  circumstances  point  with  sufficient 
strength  of  suspicion  to  any  individual  as  the  guilty  party, 
he  is  apprehended  and  committed  to  prison.  Great  caution 
is  observed  at  the  time  of  the  arrest,  and  during  the  contin- 
uance of  the  examination,  to  conceal  effectually  from  the 
suspecfed  party  the  nature  of  the  crime  charged  against 
him,  and  he  is  permitted  to  have  no  communication  with 
others.     Meanwhile  the  judge  proceeds  to  take  the  deposi- 


128  THE    UNWRITTEN    LAW. 

tions  of  witnesses.  But  any  account  of  the  principles  of 
evidence  adopted  by  the  German  codes  will  be  postponed 
to  a  subsequent  section. 

§  217.  In  France,  the  jury  is  used  in  criminal  cases,  but 
grand  juries  do  not  form  a  part  of  their  institutions.  The 
foundation  of  the  judicial  proceedings,  is  an  acte  Waccusor 
tion^  prepared  by  the  procureur  general,  a  ministerial 
officer  representing  the  government,  and  conducting  the 
prosecution  on  its  part.  This  acte  differs  largely  from  our 
indictment.  The  latter  is  scrupulously  technical  and 
guarded.  It  states  in  legal  language  and  in  general  terms 
the  crime  charged,  without  any  detail  or  evidence.  In  set- 
ting forth  a  murder,  for  example,  the  efiective  statements 
are,  that  at  a  certain  time  and  place,  the  defendant  with 
malice  aforethought,  or  premeditated  design  to  effect  the 
death  of  a  jjarticular  person,  by  a  certain  instrmnent  in- 
flicted a  blow  upon  him  from  which  death  resulted,  and 
thus  feloniously  murdered  the  deceased.  Everything  is 
simple,  concise,  and  to  tlie  point,  and  by  an  unalterable  rule 
the  indictment  must  be  confined  to  a  single  offence.  The 
French  code  directs  that  the  acte  cT accusation  shall  state, 
first,  the  nature  of  the  crime  which  forms  the  basis  of  the 
charge,  and,  secondly,  all  the  circumstances  connected  there- 
with which  tend  to  aggravate  or  diminish  the  guilt.  The 
result  of  these  directions  is,  that  the  acte  is  regarded  by  the 
state's  officer  as  a  proper  field  for  the  display  of  his  elo- 
quence in  composition;  it  abounds  in  graphic  and  pictu- 
resque descriptions  of  the  persons  and  scenes  involved  in 
the  case ;  it  assumes  and  states  as  matters  of  fact  the  thoughts 
conceived  by  tlie  accused  and  the  victim,  and  the  motives 
which  prompted  the  deed  ;  it  details  at  length  the  personal 
history  of  the  defendant,  his  advantages  and  prospects,  his 
temptations  and  fall ;  it  aggravates  the  feel i Jig  of  horror  at 
the  crime,  and  condemnation  of  the  perpetrator,  by  violent 
denunciations  and  pointed  appeals  to  the  jury  ;  in  short,  it 
buries  the  sim})le  complaint  m  a  mass  of  incident,  assump- 


ACTIONS   IN   COURTS    OF   EQUITY.  129 

tion,  argiinient,  and  abuse,  wliich  des.troys  entirely  the  char- 
acter of  the  instrument  as  a  calm,  grave,  preliminary  state- 
ment of  the  grounds  for  the  proceeding  of  the  government 
against  the  prisoner  at  the  bar. 

III.  Of  the  Origin  and  Use  of  Actions  in  Courts  of  Equity. 

§  218.  I  shall  now  proceed  to  describe  the  course  of  au 
action  in  Courts  of  Equity,  and  therein  to  state  the  origin 
and  growth  of  equitable  principles,  as  a  part  of  the  muni- 
cipal law  distinct  from  and  supplemental  to  those  developed 
by  the  courts  organized  with  a  jury  as  an  essential  feature. 
The  system  of  rules  to  which  the  technical  name  equity  is 
given,  was  devised  to  meet  needs  almost  inseparable  from 
the  constitution  and  procedure  of  the  courts  of  law.  It 
must  not  be  supposed  that  any  antagonism  exists  between 
the  Jaw  and  equity  ;  that  conflicting  sets  of  legal  principles 
and  maxims  are  embodied  in  our  jurisprudence.  The  mu- 
nicipal law  of  England  and  of  the  American  States  is  a 
unit,  but  different  courts  take  cognizance  of  different  classes 
of  questions  and  afford  different  remedies. 

§  219.  Immediately  after  the  superior  law  courts  were 
consolidated,  and  their  jurisdiction  defined,  and  while  they 
were  settling  their  procedure,  it  was  evident  that  defects 
existed  in  the  system,  which  even  then  worked  injustice, 
and  which  would  continue  to  do  so  more  and  more  as  busi- 
ness should  increase,  and  the  law  should  become  more  com- 
prehensive. I  have  already  pointed  out  some  of  these 
faults,  and  have  shown  how  the  judges,  acting  upon  the 
initiative  of  the  legislature,  proceeded  to  remove  them  by 
inventing  new  forms  of  action  and  amplifying  the  remedies. 
But  still  a  large  and  growing  number  of  cases  remained 
unprovided  for  by  any  of  the  regular  judicial  forms.  The 
limits  of  this  work  do  not  allow  me  to  point  out  in  detail 
these  instances  of  failure  of  justice,  nor  to  set  forth  at  length 
tne  subjects  which  became  cognizable  in  the  court  of  chan- 
cery ;  it  will  be  sufficient  for  me  to  indicate  in  a  very  gen- 
9 


130  THE   rNW'RriTEN   LAW. 

eral  manner  what  these  necessities  were,  and  how  the  court 
met  them,  so  tliat  the  student  may  understand  the  relative 
position  which  equity  and  the  tribunals  administering  it 
assumed  toward  the  technical  law  and  its  peculiar  courts. 

§  220.  It  may  be  asked  wliy  the  superior  courts  of  law 
did  not  themselves  supply  any  lacunoB  in  the  system,  and 
tiius  avoid  the  necessity  of  a  distinct  jurisdiction?  There 
was  in  fact  no  insui-mountable  obstacle  which  absolutely 
forbade  this  action  on  the  part  of  the  judges,  but  two  im- 
portant reasons  rendered  it  difficult,  nay,  almost  impossible. 
The  first  was  the  constitution  and  judicial  methods  of  the 
law  coui-ts ;  the  other  was  found  in  the  principles  which 
the  judges  had  tacitly  adopted  to  guide  them  in  the  admin- 
istration of  justice  and  the  development  of  the  law. 

§  221.  From  an  early  period  the  judges  of  the  Superior 
Courts  of  England  were  governed  by  close  and  severe 
methods  of  reasoning,  in  deducing  new  rules  from  estab- 
lished doctrines.  The  premise  once  laid  down  in  some 
former  decision,  they  followed  it  undeviatingly  to  the  end, 
irrespective  of  the  justice  or  injustice  which  it  might  work  in 
the  particular  cases  to  which  it  was  applied.  This  logical 
form  of  unfolding  the  law  has  always  characterized  these 
courts,  but  much  more  in  former  than  in  later  years.  The 
development  of  the  rules  relating  to  real  property,  as  they 
were  drawn  out  from  a  few  fundamental  maxims,  resembles 
the  process  of  geometric  demonstration  in  its  orderly  march. 
Tbese  deductions  of  pure  logic,  thus  stamped  by  the  judges 
with  the  character  of  positive  law,  of  necessity  often  pro- 
duced so  much  injustice  to  suitors,  that  the  very  end  of 
municipal  law  was  defeated. 

§  222.  Added  to  this  tendency  of  the  judges,  and  greatly 
enhancing  the  difficulty  of  any  relief  to  be  afforded  by 
them,  was  the  jury  trial,  as  a  constituent  part  of  the  courts. 
It  was  perceived  from  the  first,  that,  to  enable  a  jury  to 
fulfil  their  functions,  the  questions  presented  to  them  for 
decision  must  be  simple,  single,  divested  of  all  modifying 


EXAMPLES   OF   EQUITABLE   RELIEF.  131 

influences.  It  was  really  for  this  purpose — to  aid  the  jury- 
men— that  the  legal  remedies  administered  by  the  courts 
were  cast  in  the  mould  of  separate  and  distinct  forms  of 
action,  so  that  the  vital  point  in  each  particular  action 
should  always  be  the  same  ;  and  that  the  pleadings  were  so 
contrived,  closing  by  a  single  affirmation  and  denial,  that 
the  matter  in  dispute  should  be  nakedly  presented  for  the 
consideration  of  the  triers.  However  well  the  jury  might 
answer  for  all  the  wants  of  society  in  its  simplest  state,  a 
little  progress  in  culture,  with  the  attendant  increase  of 
business,  and  complexity  in  the  dispositions  of  property,  soon 
created  classes  of  judicial  investigations  entu'ely  beyond  its 
scope  and  design. 

§  223,  These  two  causes  were  sufficient  to  prevent  the 
law  courts  from  following  those  maxims,  and  granting  those 
remedies,  which  have  been  appropriated  by  the  court  of 
chancery,  and  which  are  known  as  equity.  The  Roman 
prsetor,  as  we  have  seen,  was  hampered  by  no  such  restric- 
tions ;  he  possessed  an  extraordinary  as  well  as  ordinary 
jurisdiction,  and  could  act  either  with  or  without  the  help 
of  lay  judges  of  the  fact.  'No  new  equity  magistrate  was 
then  necessary,  and  the  prsetor  could  dispense  justice  in 
either  form,  at  one  time  as  a  law  judge,  at  another  as  a 
chancellor. 

§  224.  A  few  instances  will  suffice  to  illustrate  both  the 
deficiencies  and  the  remedies. 

The  courts  of  law  in  early  times  gave  great  authority  to 
the  use  of  a  seal  upon  an  instrument  in  writing.  As  a  nat- 
ural consequence  of  this  deference  to  a  form,  they  decided 
that  the  liability  arising  from  a  bond  or  other  sealed  instru- 
ment could  only  be  discharged  by  a  writing  also  under  seal. 
It  is  true  that  this  rule  had  no  foundation  in  abstract  justice, 
but  it  "v^as  a  logical  result  of  the  value  attributed  to  this 
method  of  solemnizing  a  wi'itten  engagement.  As  a  conse- 
quence, if  the  debtor  had  actually  paid  the  sum  secured  by 
a  bond,  and  had  failed  to  exact  from  his  creditor  a  sealed 


132  '      THE   rNWKIITEN    LAW. 

discharge,  the  agreement  was  still  left  binding  upon  hira, 
and  he  could  not  resist  an  action  brought  upon  it,  to  re- 
cover again  the  money  which  he  had  already  paid.  The 
fact  of  payment  might  be  undisputed,  but  the  law  as  ad- 
ministered by  the  courts  would  give  no  relief ;  the  logic  of 
the  system  must  remain  undisturbed,  no  matter  liow  unjust 
it  might  be  toward,  the  suitor.  Here  was  a  case  for  equity 
to  interfere  through  the  chancellor,  not  to  repeal  the  doc- 
trine of  the  law  courts,  but  to  promote  substantial  justice 
by  preventing  the  creditor  from  prosecuting  his  suit  on  the 
bond. 

§  225.  Again,  in  an  action  brought  upon  a  written  in- 
strument entirely  regular  and  formal,  properly  signed  and 
sealed,  the  defence  might  be  that  the  writing  was  executed 
by  mistake,  and  did  not  contain  the  real  agreement  of  the 
parties.  Tlie  common  law  courts  with  a  jury  had  no 
means  of  giving  efficacy  to  such  a  defence.  Under  their 
forms  of  procedure,  they  could  only  decide  whether  the 
party  did  in  fact  execute  the  instrument,  and  detei'miue  the 
amount  of  the  debt  or  damages.  No  judgment  could  be 
rendered  that  a  new  agreement  should  be  substituted  con- 
forming to  the  actual  meaning  and  intention  of  the  parties. 
This  obvious  defect  gave  rise  to  another  department  of 
equity,  whereby  the  chancellor  is  empowered  to  correct 
mistakes,  and  reform,  and  even  cancel  deeds,  mortgages, 
bonds,  and  other  writings. 

§  226.  Again,  the  remedies  allowed  by  tlie  courts  of 
law,  were  entirely  compensator}^,  and  not  preventive. 
Their  judgments  only  awarded  pecuniary  damages  for  in* 
juries  already  done,  or  restored  possession  of  property  un- 
lawfully withheld  ;  they  had  no  power  to  interfere  and 
jjrevent  a  threatened  invasion  of  rights,  A  legal  system, 
thus  deficient,  would  permit  many  wrongs,  for  which  no 
damages  could  compensate,  and  would  fail  to  extend  that 
protection  to  the  citizen  which  he  has  a  right  to  demand. 
The  Court  of  Equity  was  invoked  to  supply  the  defect,  and 


EXAMPLES   OF   EQUITABLE   BELIEF.  133 

in  response,  it  borrowed  from  the  Roman  procedure  tlie 
important  and  most  beneficial  process  of  Injunctions.  These 
are  solemn  orders,  issued  by  the  chancellor  at  the  request 
of  a  suitor,  forbidding  a  defendant,  under  heavy  penalties, 
to  do  some  threatened  act,  which  would  be  contrary  to  the 
rules  of  equity,  and  would  work  irreparable  mischief  to  the 
plaintifi".  Thus,  an  injunction  would  be  allowed  to  stop  the 
prosecution  of  an  inequitable  suit  in  anotlier  court,  or  to 
restrain  a  fraudulent  debtor  from  disposing  his  property. 
These  examples  will  sufficiently  illustrate  tlie  use  of  these 
remedies. 

§  227.  The  jury  trial  was  also  an  inefficient  means  in  the 
decision  of  controversies  involving  extended  accounts,  such 
as  arise  between  partners,  and  persons  jointly  engaged  in 
business.  Hence  this  important  branch  of  judicial  duties 
was  allotted  to  the  Court  of  Equity. 

§  228.  The  ancient  methods  of  owning  and  transferring 
landed  property  were  simple,  plain,  and  public.  With  in- 
creasing wealth  and  refinement,  the  original  simplicity  was 
abandoned,  and  complicated  dispositions  of  land  were  intro- 
duced, before  unknown  to  the  law.  The  most  important  of 
these  was  boiTowed  from  the  Roman  jurisprudence,  by 
them  called  fidei  commissa,  by  the  English  known  as  Uses. 
Before  this  innovation,  every  transfer  of  proj)erty  was  pub- 
lic ;  the  new  owner,  purchaser,  or  recipient  was  known ; 
the  sale,  or  gift,  or  devise  was  to  him  directly  ;  he  enjoyed 
the  benefits  and  was  subject  to  all  the  burdens  of  the  new 
acquisition.  By  the  new  contrivance  the  original  proprietor 
could  dispose  his  land  eitlier  by  a  de^  or  by  will,  with  a 
secret  understanding  or  confidence  reposed  in  the  receiver, 
that  he  was  not  to  hold  the  property  himself,  as  his  own, 
but  was  to  transfer  it  to,  or  keep  it  for  the  benefit  of,  a  third 
person.  The  intention  of  the  parties  to  such  an  arrange- 
ment was,  that  the  apparent  purchaser  was  to  have  no  real 
interest  in  the  estate,  but  tliat  he  was  to  be  a  mere  channel 
through  which  it  or  its  benefits  should  pass  to  the  virtual 


134  THE   UNWKITTEN    LAW. 

owner.  "Whether  this  intention  should  be  effected,  de- 
pended, of  course,  upon  the  honesty  and  good  faith  of  the 
individual  to  whom  the  public  sale  or  gift  had  been  made. 
Should  he  neglect  or  refuse  to  perfonn  the  duty  imposed 
upon  him,  the  person  for  whose  use  and  benefit  the  transfer 
had  been  made  could  have  no  remedy.  The  courts  of  law 
did  not  recognize  his  claim;  The  strict  legal  rules  regarded 
the  party  to  whom  the  public  conveyance  had  been  made, 
as  the  only  one  possessing  any  interest,  and  treated  the 
secret  condition  under  which  he  received  the  property  as  an 
entire  nullity.  Yet  these  rules  of  the  law  were  plainly 
unjust,  and  means  were  devised  to  compel  an  observance 
of  the  intention  of  the  parties.  The  courts  of  equity  took 
control  of  these  cases,  and  at  the  suit  of  the  beneficial 
owner,  comj)elled  the  apparent  owner  to  perform  the  trust 
reposed  in  him.  The  rights  to  lands  so  created  were  termed 
uses,  and  their  enforcement  formed  a  very  large  share  of 
the  duties  of  the  chancellor. 

§  229.  The  illustrations  which  I  have  thus  given  will 
serve  to  explain  how  a  system  of  rules  grew  up,  partly  reme- 
dial, and  partly  supplemental  to  those  of  the  strict  law,  and 
which  at  the  same  time  formed  an  integral  part  of  the  juris- 
prudence of  the  country.  In  the  process  of  time  these  prin- 
ciples became  a  consolidated  system,  not  governed  by  any 
mere  caprice  or  private  opinion  of  the  chancellor  as  to  what 
was  right  in  a  particular  case,  but  following  precedents  and 
developing  in  a  well-arranged  order  and  succession  from 
general  and  ftmdamental  nuixims. 

§  230.  I  shall  now  state  how  the  large  and  most  import- 
ant class  of  cases  whicli  I  have  briefly  described,  devolved 
upon  the  chancellor,  as  the  proper  judicial  oflicer  for  their 
decision.  I  have  already  shown  that  the  judges  of  the  law 
courts,  both  from  tlieir  habit,  the  structure  of  their  tribunals, 
and  the  form  of  their  proceedings,  were  indisposed  and 
unable  to  take  the  initiative,  and  create  the  additional  de- 
partments of  the  municipal  law  which  are  called  equity. 


rOKM   OF   ACTION   IN    COUKTS    OF   EQUITY.  135 

Before  the  organization  of  the  Conrt  of  Chancery  as  a  dis- 
tinct tribunal,  a  suitor  who  could  not  obtain  justice  from 
the  courts  of  law,  had  no  otlier  alternative  than  that  of 
applying  to  the  king  himself,  as  the  final  source  of  justice 
to  his  subjects.  Such  a  course  was  in  strict  accordance  wdth 
the  theory  upon  which  all  judicial  powei's  were  founded. 
The  ordinary  courts  were  but  the  ministers  of  the  crown, 
and  if  they  failed  to  do  the  right,  parties  must  resort  to  the 
fountain.  These  appeals  to  the  king  were  entertained  by 
him,  or  by  his  council,  and  for  a  while  an  imperfect  kind 
of  justice  was  administered  in  the  exceptional  cases  brought 
before  them,  not  according  to  any  rule  or  precedent,  but 
having  no  guide  except  the  ideas  of  right  entertained  by 
the  monarch  and  his  advisers.  But  as  the  number  of  these 
applications  increased  beyond  the  ability  of  the  king  to  de- 
vote to  them  his  personal  attention,  the  practice  arose  of  refer- 
ring them  to  the  chancellor,  who,  in  his  high  oificial  char- 
acter of  confidential  adviser  to  the  crown,  and  chief  officer 
of  the  state,  seemed  to  be  the  most  appropriate  personage 
to  relieve  the  king  of  these  semi-judicial  duties.  In  the 
twenty-second  year  of  the  reign  of  Edward  III.,  a  general 
order  was  made  referring  all  such  matters  for  examination 
and  decision  to  the  chancellor,  and  from  that  epoch  it  is 
generally  considered  that  the  Court  of  Chancery  dates  its 
commencement  as  a  special  tribunal  possessing  an  exalted 
jurisdiction  distinct  from  that  of  the  Courts  of  Law. 

§  231.  The  forms  in  which  the  disputes  of  parties  are 
brought  before  the  chancellor  are  widely  difierent  from 
those  existing  in  the  law  courts.  They  took  their  shape 
from  the  essential  character  of  equitable  as  distinguished 
from  legal  doctrines.  A  suitor  in  the  latter  courts  must 
base  his  claims  upon  some  precise  rule,  either  already  estab- 
lished by  statute  or  decision,  or  necessarily  resulting  there- 
from ; '  the  only  relief  which  he  could  obtain  was  in  the 
shape  of  pecuniary  damages,  or  possession  of  lands  or  chat- 
tels.    On  the  other  hand,  the  question  whether  a  party  was 


136  THE   UN%VKITrEN   LAW. 

entitled  to  anj  relief  in  the  Court  of  Chancery,  and  if  so, 
what  should  be  its  nature,  depended  upon  the  varying  cir- 
cumstances of  each  controversy,  u^jon  a  multitude  of  sub- 
ordinate facts  surrounding  the  principal  one.  In  addition 
to  this  vital  distinction,  tlie  class  of  subjects  entertained  by 
the  chancellor  often  required  that  he  should  probe  the  con- 
science of  the  defendant,  ajid  wring  from  him  an  avowal  of 
acts  and  intentions  hidden  in  liis  own  breast,  all  of  which 
was  in  direct  antagonism  to  the  methods  of  the  law  courts, 
which  allowed  a  lock  to  be  placed  upon  the  mouths  of  the 
litigant  parties. 

§  232.  To  respond  to  these  necessary  features  of  the 
chancellor's  jurisdiction  his  judicial  forms  were  admirably 
contrived.  There  was  but  one  kind  of  action,  flexible  in  its 
nature,  easily  accommodating  itself  to  the  requirements  of 
each  case.  It  needed  no  original  writ  or  process  for  its 
commencement.  The  plaintiff  took  the  initiative  by  ad- 
dressing to  the  chancellor  a  pleading  technically  known 
as  the  Bill  of  Complaint,  in  which  all  persons  were  made 
defendants  who  would  be  legally  affected  by  the  result  of 
the  cause,  however  different  their  interests  might  be.  It 
stated  all  the  facts  and  circumstances  out  of  which  the 
claim  for  relief  arose,  as  well  as  the  grounds  upon  which 
the  defendant  was  sup])osed  to  rely  in  resisting  the  plaintiff's 
demands.  The  most  striking  feature  of  the  Bill,  however, 
were  the  Interrogatories,  which  might  be  used  or  not  at  the 
plaintiff's  option.  In  them  were  incorporated  a  series  of 
questions  touching  the  points  in  dispute,  intended  to  elicit 
from  tlie  adverse  party  such  statements  and  admissions 
as  would  assist  in  the  proof  of  the  case.  The  pleading 
ended  witli  a  prayer  foi'  the  particular  relief  to  which  the 
party  supposed  himself  entitled,  and  for  the  general  relief 
that  the  chancellor  would  act  according  to  equity  and  good 
conscience  in  the  matter.  The  i:)laintiff  had  the  privilege 
of  swearing  to  the  truth  of  his  complaint  and  of  thus  com- 
pelling the  defendant  to  disclose  his  case  .mder  the  solemn 


EVIDENCE   IN    CIVIL   ACTIONS.  137 

resti'ictions  of  an  oath.  Upon  the  presentation  of  liis  plead- 
ing, the  court  issued  a  process  called  a  Subpoena,  which 
notified  the  adverse  parties  to  appear  and  defend  the  action. 
§  233.  Tlie  ordinary  pleading  of  the  defendant  was  called 
the  Answer.  In  it  were  set  forth  at  large,  all  the  facts  upon 
which  he  relied,  whether  they  had  the  effect  entirely  to 
defeat  the  plaintiff's  recovery,  or  only  served  to  modify  it. 
If  required  by  the  complaint,  the  defendant  was  compell- 
ed to  answer  under  oath  all  the  interrogatories  proposed  to 
him,  thus  making  himself  a  witness  for  both  parties.  Ya- 
rious  rules  were  adopted,  which  I  need  not  here  describe, 
to  compel  the  defendant  to  make  a  full  and  complete 
answer,  without  evasion  or  concealment,  for  very  much 
of  the  efficacy  of  the  Court  of  Chancery  depended  upon  its 
power  to  force  an  unwilling  party  to  divulge  matters  within 
his  own  knowledge  which  could  never  be  reached  by  a 
Court  of  Law.  It  not  unfrequently  happened  that  the 
plaintiff  was  willing  to  submit  the  cause  to  the  judge  for 
decision,  without  examining  witnesses,  being  satisfied  with 
the  revelations  made  by  the  defendant  in  his  answer. 

TV.  Of  the  method  of  ascertaining  the  facts  in  a  judicial 
Trial  Ijy  Evidence. 

§  23i.  1.  In  Civil  Actions. — Having  described  the  ac- 
tions in  courts  of  law,  and  of  equity,  from  their  com- 
mencement up  to  the  time  of  trial,  I  shall  now  explain 
the  principal  features  of  the  trial  itself,  which  enable  the 
jury  and  judge  to  decide  upon  the  disputed  questions  of 
fact,  and  to  determine  the  rules  of  law.  In  a  natural  order, 
the  first  of  these  is  the  Evidence,  by  which  the  jury  in  law 
courts,  and  the  chancellor  in  equity,  are  informed  of  the 
truth  respecting  the  controversy  before  them,  and  are  fur- 
nished with  the  material  upon  which  to  base  their  authori- 
tative cbuclusions. 

§  235.  The  rule  has  long  prevailed  in  courts  of  law, 
both    in  civil    and    criminal    cases,   that   witnesses   of    a 


138  TUE    UNWRITTEN   LAW. 

party  must  be  produced,  sworn,  and  examined  in  open 
court,  before  the  judge  and  jury,  and  submitted  to  a  cross- 
examination  from  tlie  adverse  party.  Tliis  requirement  is 
evidently  based  upon  good  sense  and  justice.  The  amount 
of  credit  to  be  given  to  a  statement,  depends  so  mucb  upon 
tlie  appearance  and  mannei*  of  the  M'itness  in  giving  his 
testimony,  that  the  English  and  American  courts  possess 
a  strong  safeguard  against  error  and  perjury,  in  the  prac- 
tice of  conducting  an  oral  examination  in  the  presence  of 
the  triers  themselves.  It  is  this  feature  among  others,  which 
has  influenced  the  English  and  American  people  to  be  so 
strongly  wedded  to  tlieir  judicial  institutions,  in  preference 
to  those  of  the  continental  nations  of  Europe.  Still  this 
rule  is  subject  to  some  exceptions.  When  the  witness  is 
in  another  country,  so  that  his  attendance  caimot  be  com- 
pelled, or  when  he  is  infirm  or  sick,  his  testimony  in  civil 
cases  may  be  taken,  reduced  to  writing,  and  read  to  the  jury. 
In  criminal  cases,  all  witnesses  against  the  prisoner  must  be 
actually  produced,  and  confronted  with  him  on  the  trial, 
no  exception  whatever  being  allowed.  In  Equity  proceed- 
ings the  practice  is  generally  difl'erent.  Witnesses  are  ex- 
amined and  cross-examined  jnior  to  the  trial,  before  commis- 
sioners, and  their  depositions  reduced  to  writing  are  read 
to  the  court.  In  some  of  the  American  States  the  Legisla- 
tures have  interfered,  and  made  an  oral  examination  in  open 
court  at  the  trial,  necessary  in  equity  as  well  as  in  legal 
actions. 

§  236.  After  the  witnesses  were  completely  separated 
from  the  jury,  and  required  to  appear  in  public  before  the 
court,  as  I  have  stated  in  a  former  section,  the  judges  estab- 
lished strict  rules  regarding  the  classes  of  persons  who  might 
be  admitted  to  give  evidence  in  judicial  actions.  The  par- 
ties to  a  suit  (with  the  exception  noticed,  of  the  defendant 
in  an  equity  action)  were  absolutely  excluded,  and  this  doc- 
trine was  extended  to  all  those  who  would  be  pecuniarily 
affected  by  the  termination  of  the  controversy.    Tlie  ground 


WHO   MAY   BE   WITNESSES.  139 

of  this  restriction  was  the  actual  or  supposed  interest  of 
these  individuals.  The  judges  seemed  to  have  had  so  low 
an  estimate  of  human  nature,  as  to  declare  it  to  be  a  pre 
sumption  so  strong  that  nothing  could  overthrow  it,  that  all 
persons  who  had  a  direct  pecuniary  interest  in  the  result  of 
a  legal  trial,  would  commit  perjury,  rather  than  testify  to 
their  own  harm,  and  they  therefore  excluded  them  entirely 
from  the  witness  box.  Tlie  American  coui-ts,  borrowing 
from  the  English,  established  the  same  principle  in  our 
procedure. 

§  237.  Another  rule  invented  by  the  English  judges  and 
adopted  by  the  American,  based  upon  the  theoiy  which 
regarded  the  individuals  as  legally  identical,  prevented  a 
husband  and  wife  from  giving  evidence  for  or  against  each 
other,  except  in  a  few  necessary  cases.  There  seem  to  be 
some  plausible  grounds  for  this  regulation,  founded  upon 
the  policy  which  struggled  to  preserve  the  institution  of 
marriage  inviolate,  and  to  remove  all  possible  occasions  for 
mfringing  upon  its  sacredness. 

§  238.  Whatever  may  have  been  the  reasons  for  the 
adoption  of  these  maxims,  they  had  become  so  firmly  estab- 
lished at  the  very  basis  of  the  law  of  evidence,  that  the  legis- 
lature alone  could  abolish  them.  This  has  lately  been  done 
in  England  and  in  some  of  the  American  States.  The  in- 
itiative was  made  by  repealing  the  restriction  upon  persons 
interested  in  the  event  of  an  action,  and  allowing  the  fact 
to  affect  their  credibility  with  the  jury  only,  and  not  their 
capacity  to  testify.  The  next  step  was  taken  by  statutes 
which  permit  the  parties  in  an  action  to  give  evidence  for 
themselves  or  their  adversaries.  In  England  the  rule  which 
condemned  the  husband  or  wife  of  a  party  to  silence  has 
been  abrogated,  except  in  actions  for  a  divorce  on  the 
ground  of  adultery.  Several  American  States  have  fol- 
lowed the  whole  or  the  greater  part  of  this  modern  legis- 
lation. 

§  239.  The  considerations  which  led  to  this  o-reat  inno- 


14rO  THE   UNWRirrKN   LAW. 

vation  upon  the  old  ideas  are  simple  and  convincing.  It 
•was  seen  to  be  absurd  to  shut  out  from  the  witness  stand  all 
those  persons  who  had  a  pecuniary  interest,  however  small, 
in  an  action,  while  those  who  were  connected  to  the  parties 
by  the  closest  ties  of  relationship  or  common  feelings  and 
prejudices,  were  freely  allowed  to  testify.  Philosophic  legis- 
lators and  jurists  had  also  become  convinced  that  these 
ancient  restraints  were  founded  upon  false  views  of  jDolicy, 
and  that  justice  would  be  more  surely  attained  by  opening 
to  the  jury  and  to  the  judges  all  avenues  to  the  truth. 
Why  should  the  very  persons,  who,  in  the  vast  majority  of 
cases,  are  the  most  familiar  with  the  disputed  facts,  be  kept 
silent,  and  the  triers  required  to  grope  after  the  result,  aided 
only  by  isolated  facts  helped  out  by  conjecture  and  infer- 
ence? By  this  modern  legislation  the  door  has  been  thrown 
wide  open,  and  the  simple  and  effectual  rule  is  established 
that  all  persons  who  have  any  information  to  give,  may  be 
called  as  witnesses  to  enlighten  the  jurors  and  the  judges. 
The  only  restraints  are,  that  the  proposed  witness  should  be 
of  sufficient  age  to  comprehend  the  nature  and  obligation 
of  an  oath ;  that  he  should  be  of  sound  mind,  and  that  he 
should  not  have  been  rendered  infamous  by  a  conviction  for 
a  felonious  crime.  Doubtless  the  new  rule  will  extend  over 
other  States,  and  become  universal  wherever  our  fonn  of 
judicial  procedure  prevails. 

§  240.  Having  thus  explained  how  testimony  is  to  be 
delivered  in  courts  of  law  and  equity,  and  what  persons 
may  be  witnesses  in  an  action,  I  shall  now  explain  some  of 
the  general  principles  which  relate  to  the  substance  of  the 
evidence  itself,  in  civil  and  in  criminal  cases.  These  prin- 
ciples are  few  and  simple,  founded  upon  obvious  reasons  of 
policy,  and  considerations  of  natural  justice,  adopted  to 
protect  parties,  to  elicit  the  truth,  and  to  call  out  such 
proofs  as  shall  best  carry  conviction  to  the  minds  of  those 
who  are  to  decide.  Although  the  general  maxims  are  few, 
yet  as  they  are  so  eminently  practical,  and  are  apj)licd  in 


KINDS   OF   EVIDENCE.  141 

Bueh  a  variety  of  circumstances,  tliey  have  necessarily  been 
subdivided  into  a  vast  number  of  subordinate  rules.  Into 
this  detail  I  cannot  of  course  enter ;  but  the  principles 
themselves,  as  guides  in  a  judicial  investigation,  form  one 
of  the  most  interesting  and  instructive  portions  of  our  mu- 
nicipal law.  I  shall  first  state  those  maxims  which  prevail 
in  the  trial  of  civil  actions,  and  which  are  common  also  to 
them  and  criminal  causes,  and  secondly,  those  which  pecu- 
liarly distinguish  the  latter,  and  shall  add  a  comparison 
between  our  own  system  and  those  of  some  European  coun- 
tries. 

§  241.  It  is  the  duty  of  the  judge  who  presides  at  a  trial, 
to  determine  what  matters  shall  be  presented  to  the  jury, 
or  received  by  the  court  as  evidence.  The  rules  which 
regulate  the  admission  of  these  facts  are  not  arbitrary  or 
capricious,  but  are  rather  generahzations  from  a  philo- 
sophical review  of  the  methods  which  best  prodnce  convic- 
tion in  the  human  mind,  influenced  somewhat  by  motives 
of  mere  expediency.  Such  evidence  as  is  permitted  to  be 
detailed  to  a  judge  or  jury  is  said  to  be  competent ;  its 
effect  upon  the  minds  of  the  triers  depends  upon  its  credi- 
bility. Much  testimony  is  admitted  as  competent,  which  is 
not  credible,  and  many  facts  are  rejected  as  incompetent, 
which  might  have  produced  belief. 

§  242.  In  regard  to  its  external  character,  all  evidence 
may  be  divided  into  oral  and  written  ;  in  respect  to  its 
essential  nature,  it  is  direct  or  presumptive. 

§  243.  It  is  possible,  though  not  necessary,  for  persons  to 
reduce  all  their  agreements,  contracts,  and  business  transac- 
tions to  writing,  and  thus  to  preserve  the  most  ready  and 
efficient  evidence  of  their  acts  and  intentions.  The  law, 
however,  requires  a  large  portion  of  the  engagements  which 
are  entered  into,  and  the  transfers  of  prof)erty  which  are 
effected,  in  the  ordinary  concerns  of  life,  to  be  formally 
committed  to  writing,  and  permits  no  oral  testimony  to 
establish  the  facts,  on  judicial  trials.     This  important  rule, 


142  THE   UNWRITTEX    LAW. 

which  has  so  widely  extended  an  influence,  and  which  af- 
fects every  description  of  business,  was  established  in  Eng- 
land by  the  statute  of  frauds,  passed  in  the  reign  of  Charles 
II.,  and  which  has  been  substantially  enacted  in  most  or  all 
of  the  American  States.  The  important  provisions  of  this 
statute  in  England  and  America,  are  that,  all  conveyances 
of  land,  or  of  an  interest  in  land  for  more  than  three  years, 
all  contracts  by  an  executor  or  administrator  to  answer  for 
the  debts  of  the  deceased  out  of  his  own  property,  all  prom- 
ises of  one  person  to  answer  for  the  debt,  default,  or  miscar- 
riage of  another,  all  agreements  made  in  consideration  of 
marriage,  and  those  not  to  be  performed  within  a  year  from 
the  time  of  making  them,  and  aU  contracts  for  the  sale  of 
lands,  must  be  in  writing  and  signed  by  the  party  to  be 
charged,  or  his  agent.  All  contracts  for  the  sale  of  goods 
and  chattels  for  the  price  of  £10  or  upwards  (in  the  Amer- 
can  States  this  amount  varies  from  $30  to  $50)  must  be  in 
writing,  unless  at  the  time  of  the  sale  the  buyer  receive  a 
part  of  the  goods,  or  pay  a  portion  of  the  price.  By  stat- 
utes in  England  and  the  United  States,  it  is  made  necessary 
that  last  wills  and  testaments  should  be  written.  Many 
contracts,  such  as  promissory  notes,  bonds,  and  other  sealed 
instniments,  are,  from  their  very  nature,  in  writing.  The 
statute  of  frauds  does  not  interfere  with  the  essential  char- 
acter of  agreements  and  transfers  of  property,  but  simply 
introduces  an  expedient  rule  of  evidence,  determining  how 
such  transactions  shall  be  proved.  It  was  enacted  upon 
grounds  of  public  policy,  to  promote  certainty  in  business 
affairs,  and  to  remove,  as  far  as  possible,  all  opportunities 
for  fraud  and  mistake. 

§  2i4.  After  ])arties  have,  either  voluntarily  or  by  the 
requirement  of  the  law,  reduced  their  agreements  or  trans- 
actions to  writing,  they  are  not  permitted,  in  a  judicial 
trial,  by  any  oral  testimony  respecting  their  conversations 
or  mutual  intentions  before  or  at  the  time  of  completing  the 
instrument,  to  add  to,  or  detract  from,  or  in  any  way  vary 


DIRECT   AND   PEESUMP'ITVE   EVIDENCE.  143 

the  meaning  of  their  written  stipulations.  It  is  assumed 
that,  by  formally  committing  their  engagements  to  writing, 
thej  have  thus  definitely  abandoned  all  other  intentions, 
and  settled  upon  the  one  contained  in  the  instrument. 
Were  they  now  permitted  to  modify  this  solemn  under- 
taking by  oral  evidence,  the  door  would  be  open  to  admit 
all  the  evils  which  the  statute  of  frauds  was  passed  to  cor- 
rect. While  verbal  testimony  is  not  suffered  to  substitute 
another  contract,  or  other  terms  for  those  expressed  by  the 
writing,  it  is  lawful,  when  necessary,  to  produce  such  evi- 
dence to  assist  in  its  interpretation,  so  that  a  court  or  jury 
may  be  possessed  of  its  true  meaning. 

§  245.  The  division  of  evidence,  in  respect  to  its  essen- 
tial nature,  is  into  direct  and  presumptive.  Direct  evidence 
is  that  which  immediately  applies  to  the  disputed  fact, 
showing  it  to  be  within  the  personal  knowledge  of  the  wit- 
ness, or  to  be  contained  in  some  writing  obligatory  upon 
the  party.  When  the  proofs  establish  collateral  facts,  with 
which  the  principal  subject  is  supposed  to  be  connected, 
and  from  which  it  is  to  be  inferred  or  presumed  by  the 
triers  as  a  consequence  more  or  less  natural  and  necessary, 
the  evidence  is  presumptive.  In  both  these  cases  the  wit- 
nesses are  assumed  to  testify  the  truth,  and  the  whole  struc- 
ture of  judicial  proof,  and  the  conviction  resulting  from  it, 
is  based  upon  this  confidence  reposed  in  their  integrity. 

§  246.  In  a  great  majority  of  cases,  the  evidence  to  sub- 
stantiate the  controverted  questions  of  fact  is  more  or  less 
presumptive  in  its  nature.  As  individuals  in  their  private 
concerns  continually  act  under  the  effect  of  an  overpowering 
probability,  so  courts  are  constrained  to  yield  to  the  same  spe- 
cies of  moral  proof,  striving,  however,  to  eliminate  as  much 
as  possible  all  elements  of  doubt  and  uncertainty. 

§  247.  The  presumptions  which  are  constantly  used  to 
affect  the  minds  of  the  triers,  are,  from  the  convincing  effect 
atti'ibuted  to  them,  divided  into  presumptions  of  law,  and 
presumptions  of  fact.     Presumptions  of  law  are  those  which 


144  THE    UXAVRITTEN    LAW. 

arise,  necessarily,  bj  an  inference  of  law,  'and  not  argu- 
mentativelj,  from  a  certain  state  of  facts.  Presumptions  of 
fact  are  those  inferences  which  may,  or  may  not  be  drawn 
by  a  jnry  or  judge  fi'om  circumstances  which  have  been 
proven  to  them.  The  convincing  effect  of  these  classes 
varies  with  the  nature  of  the  subjects  which  are  the  premises 
whence  the  conclusions  follow.  Presumptions  of  fact  may  be 
so  weak  as  to  carry  little  weight  with  them,  or  they  may  be 
so  overpowering  that  no  candid  mind  can  resist  their  force. 
If  it  should  be  proved,  in  a  trial  for  murder,  that  the  pris- 
oner was  hostile  to  the  deceased,  and  was  seen  near  the 
place  of  the  crime  shortly  after  its  commission,  the  inference 
that  he  was  the  guilty  party  would  be  a  presumption  of  fact, 
weak  indeed  ;  but  if  to  these  circum.stances  it  were  added, 
that  the  deceased  was  shot  by  a  pistol,  that  such  a  weapon, 
lately  discharged,  was  found  upon  the  prisoner,  into  which 
the  bullet  taken  from  the  dead  body  exactly  fitted,  that  the 
wadding  which  surrounded  this  ball  was  torn  from  a  news- 
paper, and  accurately  corresponded  to  the  rest  of  the  paper 
in  his  possession,  the  inference  of  guilt  would  still  be  a  pre- 
sumption of  fact,  but  now  irresistible  in  its  i:)Ower  to  produce 
conviction.  In  these  cases,  the  law  does  not  deduce  the  con- 
clusion as  a  necessary  result  of  the  facts,  it  is  only*  argu- 
mentatively  drawn  by  the  triers  by  the  ordinary  processes 
of  reasoning.  To  tliis  class  belong  the  circumstantial  evi- 
dence, so  much  resorted  to  in  criminal  trials,  and  a  large 
portibn  of  the  proofs  in  ordinary  civil  cases. 

§248.  Presumptions  of  law,  on  the  contrary,  are  conclu- 
sions at  which  the  law  arrives,  not  by  argument  in  eacli 
case,  but  as  the  )-esult8  of  a  wide  extended  experience.  They 
are  disputable  or  conclusive.  Disputable  presumptions  of 
law,  are  those  which  may  be  rebutted  by  counter  evidence. 
The  following  instances  will  serve  as  illustrations  of  this 
class,  A  person  acciused  of  crime  is  presumed  to  be  inno- 
cent, and  until  evidence  is  offered,  this  presumption  is  abso- 
lute, yet  it  may  be  entirely  removed  in  the  course  of  a  trial. 


GENERAL   RULES   OF   EVIDENCE.  145 

Tlie  existence  of  malice  is  presumed  from  the  fact  of  killing 
a  human  being,  yet  this  legal  inference  may  be  rebutted, 
and  the  homicide  shown  to  have  been  accidental  or  neces- 
sary. The  possessor  of  personal  property  is  presumed  to  be 
the  owner,  but  evidence  may  readily  transfer  the  ownership 
to  its  rightful  place.  The  class  is  very  extensive,  and  the 
legal  rule  which  raises  such  inferences,  is  founded  upon  the 
plainest  principles  of  justice,  and  is  in  accordance  with  the 
general  experience  of  mankind. 

§  249.  Conclusive  presumptions  are  those  which  the  law 
derives  absolutely  from  a  given  state  of  facts  and  will  not 
permit  to  be  repelled  by  any  amount  of  countervailing  evi- 
dence. "  They  are  adojDted  from  motives  of  public  policy, 
for  the  sake  of  greater  certainty  and  the  promotion  of  peace 
and  quiet  in  the  community,  and,  therefore,  it  is,  that  all 
corroborating  evidence  is  dis])ensed  with,  and  all  opposing 
evidence  is  forbidden."  As  illustrations  of  this  class,  I  give 
the  following  examples :  Every  person  is  conclusively  pre 
sumed  to  have  contemplated  the  natural  and  probable  con- 
sequences of  his  own  acts.  A  certain  lapse  of  time  after 
their  creation,  is  made  by  statute  an  absolute  presumption 
of  the  payment  of  debts.  A  continual  adverse  possession 
of  lands,  for  a  considerable  period  (usually  twenty  years)  is 
declared  by  statute  to  afford  a  conclusive  presumption  that 
the  possessor  holds  by  means  of  a  valid  title.  These  in- 
stances might  be  multiplied,  but  enough  has  been  given  to 
define  and  explain  the  meaning  and  uses  of  these  classes  of 
presumptions  which  are  inferred  from  established  facts. 

§  250.  I  shall  now  give  an  abstract  of  the  most  import 
ant  general  rules  which  regulate  the  introduction  of  evi- 
dence in  the  course  of  a  judicial  trial.  (1.)  The  evidence 
must  be  confined  to  the  matters  in  dispute  between  the  par 
ties,  as  they  are  set  forth  by  the  pleadings.  It  is  not  neces- 
sary th^  each  fact  which  it  is  proposed  to  establish,  should 
directly  prove  the  question  in  issue — the  very  nature  of  cir- 
cumstantial evidence  forbids  this  strictness  ;  but  each  fact, 
10 


146  THE   UNWRITTEN    LAW. 

taken  in  connection  with  the  others,  should  have  a  tendency 
to  establish,  at  least  by  natural  inference,  the  matters  in 
controversy.  There  are  some  apparent  exceptions  to  this 
general  rule ;  those  which  occur  in  criminal  trials  are  no- 
ticed hereafter.  (2.)  It  is  sufficient  if  the  substance  of  the 
issue  between  the  parties  be  proved.  (3.)  The  burden  of 
proof  rests  upon  a  party  who  asserts,  and  not  on  him  who 
denies  a  fact.  In  this  requirement  the  law  follows  the  fa 
miliar  j)rocesses  of  all  logical  reasoning.  (4.)  The  best 
evidence  which  the  nature  of  the  case  admits  must  be  pro 
duced.  This  rule  is  one  of  convenience,  adopted  to  prevent 
fraud  and  mistake.  It  relates  not  to  the  amonnt  or  cogency, 
but  to  the  character  and  quality  of  the  evidence.  Thus,  if  it 
appears  that  a  party  relies  upon  a  deed  or  other  writing, 
which  it  is  necessary  to  prove,  the  law  requires  him  to  pro- 
duce the  original,  and  not  to  describe  it  to  the  jury  by  a 
copy,  or  by  the  oral  testimony  of  a  witness  who  has  read  it 
and  is  acquainted  with  its  contents.  To  this  rule  there  is, 
liowever,  an  important  and  necessary  exception,  introduced 
to  prevent  a  failure  of  justice.  When  a  writing  has  been 
destroyed  or  lost,  or  is  in  the  possession  of  the  opposite 
party,  who  refuses  to  produce  it,  the  person  relying  upon  it, 
may  prove  the  contents  if  possible,  by  oral  testimony,  as  this 
species  of  proof  is  then  really  the  best.  (5.)  As  a  corollary 
to  the  principle  requiring  the  best  evidence  to  be  offered, 
the  rule  has  been  adopted  that  a  witness  must  testify  only 
to  facts  within  his  own  knowledge,  and  cannot  relate  such 
as  he  has  heard  from  others.  The  reasons  for  this  careful 
rejection  of  hearsay  evidence,  are  not  that  it  is  utterly  un- 
worthy of  credit,  but  because  it  is  so  liable  to  an  admixture 
of  error,  the  general  experience  of  mankind  pronounces  it  so 
un trust wortliy,  that  the  ends  of  justice  are  better  promoted 
by  its  absolute  exclusion  from  the  courts.  The  jury  and 
judges  rely  upon  the  integrity  of  the  witness  himself  while 
examined  and  cross-examined  under  the  sanction  of  a  sol- 
emn oatli,  but  if  he  simply  recounts  declarations  made  by 


GENERAL   RULES   OF   EVIDENCE.  147 

another,  this  latter  becomes  the  one  in  whom  the  triers  mast 
really  place  their  confidence,  and  that  without  any  oath  to 
bind  him  to  the  truth,  or  any  examination  to  test  his  means 
of  knowledge,  his  accuracy,  or  his  integrity.     This  rule 
strongly  characterizes  the  American  and  English  procedure, 
and  contributes  much  to  the  correctness  and  certainty  of 
the  results  of  our  judicial  trials.     General  as  it  is,  the  rule, 
however,  is  subject  to  some  modifications  and  even  excep- 
tions.   It  often  happens  that  the  verbal  declarations  of  third 
persons  form   a  part  of  the  very  subject  in  controversy, 
when  they  may  be  proved  as  any  other  fact  in  the  case. 
Certain  matters  of  pure  hearsay,  such  as  family  traditions 
respecting  pedigTee,  entries  of  births  and  deaths  in  family 
records,  inscriptions  on  tombstones   and  monuments,  the 
general  reputation  of  an  individual  in  the  community,  are 
admitted  from  necessity.     In  trials  for  homicide,  the  dying 
declarations  of  the  deceased  are  permitted  to  be  given  to 
the  jury,  for  the  reason  that  a  person  in  such  condition 
speaks  under  even  a  more  awful  sanction  than  that  of  an 
oath,  and  his  statements  are,  therefore,  entitled  to  all  the 
weight  of  those  of  a  sworn  witness.     The  courts  have  not 
followed  this  reasoning  to  its  legitimate  results,  and  they 
restrict  the  exception  to  the  single  case  which  I  have  men- 
tioned.    There  are  other  exceptions  and  modifications,  but 
I  should  be  led  into  too  much  detail  were  I  to  give  them. 
(6.)  Closely  connected  with  the  general  principle  rejecting 
evidence  purely  hearsay,  although  not  exactly  an  exception 
to  it,  is  the  rule  which  receives  the  declarations,  admissions, 
or  confessions  of  parties  to  tile  action  and  persons  directly 
connected  with  them  in  the  subject  matter  of  the  suit,  when 
offered   against  them.     This   species  of  testimony  is  not 
strictly  hearsay,  it  is  rather  the   substitution  of  a   short 
method  of  establishing  a  fact,  instead  of  that  which  is  more, 
regulai^  and  natural,  and  is  based  upon  the  presumption 
that  all  persons  mean  what  they  say,  and  intend  to  be 
bound  by  theii-  declarations.     Admissions  may  be  oral  or 


148  THE   UNWRITTEN    LAW. 

written,  or  they  may  consist  merely  in  the  direct  acts,  or 
even  silence  of  a  party.  A  person  was  not  permitted  to 
prove  his  declarations  in  his  own  favor,  but  the  full  admis- 
sion of  parties  to  testify  in  their  own  behalf  will  virtually 
abolish  this  rule.  The  confessions  of  criminals  are  received 
under  the  restriction  that  they  must  have  been  strictly  vol- 
untary, elicited  by  no  hope  of  reward,  or  threat  of  harm 
offered  to  them, 

§  251.  2.  Criminal  Actions. — A  general  knowledge  of 
the  method  of  procedure  in  criminal  trials,  and  especially 
of  the  kind  of  evidence  which  the  state  may  use  to  establish 
the  guilt  of  an  accused  person,  is  of  the  highest  importance 
to  every  good  and  intelligent  citizen.  In  these  rules  are 
bound  up  much  of  that  fundamental  law  which  throws  a 
safeguard  around  the  personal  rights  of  every  member  of  the 
community,  and  protects  him  in  the  enjoyment  of  his  indi- 
vidual freedom.  K  we  look  at  them  simply  as  a  means  to 
elicit  the  truth  most  unerringly,  to  pursue  the  steps  of  the 
criminal  most  closely,  and  to  defend  society  most  effectually 
from  evil,  they  will  appear  plainly  deficient.  In  so  many 
respects  do  they  favor  the  prisoner,  stop  the  prosecution  in 
its  pursuit,  deny  the  use  of  proofs  which  are  constantly 
employed  and  relied  upon  in  the  daily  business  of  life,  that 
to  one  unaccustomed  to  them,  they  seem  poorly  devised  to 
promote  justice  and  punish  guilt.  Continental  jurists  of 
Europe,  who  have  grown  up  under  another  system,  gen- 
erally look  with  wonder  upon  the  English  and  American 
methods  of  criminal  procedure,  and  rules  of  criminal  evi- 
dence. But  in  our  estimate  we  should  view  them,  not 
solely  as  the  judicial  instruments  by  which  the  state  ascer- 
tains and  punishes  its  offenders,  but  rather  as  compromises 
between  the  rights  of  society  on  the  one  hand,  to  Ije  pro- 
tected from  assault,  and  of  the  individual  on  the  other,  to 
be  left  to  the  unmolested  enjoyment  of  his  natural  liberty. 
They  attempt  to  shield  the  state,  and,  at  the  same  time,  to 
abridge  in  the  smallest  possible  degree  the  personal  free- 


CRIMINAL   EVIDENCE — PKESUMPTIONS.  149 

dom  of  the  accused.  The  theory  of  our  system  is  that  a 
danger  to  society  is  to  be  feared,  greater  even  than  results 
from  the  unlawful  acts  of  single  criminals,  and  this  is,  that 
the  foi'ms  of  the  penal  law  may  be  used  to  overpower  and 
oppress  the  citizen.  Hence  come  these  constitutional  re- 
strictions which  hedge  round  the  steps  of  prosecuting  officers 
and  judges. 

§  252.  One  principle  which  lies  at  the  foundation  of 
criminal  evidence,  and  sums  up  in  itself  all  the  other  safe- 
guards of  individual  liberty,  is  embodied  in  the  maxim  that 
every  person  is  presumed  to  be  innocent,  until  he  is  proven 
guilty,  and  its  corollary  that  a  conviction  can  only  proceed 
upon  such  a  state  of  evidence  as  does  not  leave  a  reasonable 
doubt  in  the  minds  of  the  jurors.  This  doctrine,  which  is 
not  peculiar  to  our  jm'isprudence,  but  is  common  to  all 
scientific  codes,  is  founded  upon  the  plainest  requirements 
of  justice.  Yet  this  time-honored  maxim  should  not  be 
misunderstood.  Although  the  accused  is  in  theory  pre- 
sumed to  be  innocent,  yet  he  is  not,  nor  can  he  be  treated 
as  such.  He  is  placed  in  confinement,  or  held  to  bail,  and 
required  to  prepare  for  his  defence.  The  true  meaning  of 
the  rule  is  that  the  burden  of  proof  is  thrown  on  the  prose- 
cution ;  that  when  the  prisoner  is  arraigned,  his  case,  prior 
to  any  evidence,  is  clear  in  his  favor,  and  that  the  state 
cannot  demand  a  conviction  until  such  proof  is  oftered  as 
shall  satisfy  the  minds  of  the  triers,  beyond  a  reasonable 
doubt,  of  his  guilt.  This  principle,  as  already  said,  is  not 
peculiar  to  our  law.  It  prevails,  and  must  prevail,  in 
theory  at  least,  wherever  jurisprudence  is  studied  and  ad- 
ministered as  a  branch  of  ethics.  The  maxim,  in  short, 
means  that  the  accused  shall  not  be  convicted  upon  a  mere 
presumption,  but  only  upon  such  reasonable  certainty  as 
can  be  obtained  from  fallible  evidence.  Under  the  opera- 
tion ol'this  salutary  rule,  upon  the  arraignment  and  trial  of 
a  suspected  criminal,  the  state,  through  its  prosecuting 
officers  must  begin  the  attack,  and  proceed  uitil  the  case 


150  THE   UNWKITTEN   LAW. 

has  been  established  against  bim,  before  be  can  be  required 
to  assume  tbe  defensive. 

§  253.  Tbe  next  inquiry  is,  what  classes  of  facts  may  tbc 
state  prove,  and  what  may  it  not,  in  tbus  attempting  to 
bring  tbe  guilt  borne  to  tbe  prisoner. 

In  every  criminal  trial,  tbe  general  cbarge  to  be  main- 
tained by  tbe  government  necessarily  resolves  itself  into 
three  separate  facts,  which  logically  follow  each  other  in  a 
fixed  order,  namely,  that  tbe  alleged  acts  were  committed  ; 
that  they  were  done  through  the  agency  of  tbe  accused,  and 
that  they  were  done  with  a  criminal  design.  These  are  dis- 
tinct propositions,  all  involved  in  tbe  idea  of  guilt,  and 
sometimes  requiring  entirely  different  species  of  proofs. 
Tbe  first  is  called,  in  tbe  technical  language  of  professional 
books,  tbe  corpus  delicti^  the  body  of  the  offence.  It  is,  of 
course,  tbe  very  basis  of  tbe  cbarge,  upon  which  tbe  whole 
fabric  rests.  In  a  case  of  murder,  the  corpus  delicti  is  the 
actual  and  violent  death  of  a  human  being  ;  in  robbery  it  is 
the  actual  and  forcible  abstraction  of  an  article  of  personal 
property.  Tbe  prosecution  must  fii'st,  and  by  sufficient 
proof,  establish  tbe  corpus  delicti^  separately  and  indepeiid- 
ently  of  tbe  remaining  elements  of  the  crime,  before  it  pro- 
ceeds to  their  investigation.  This  rule  is  also  plainly 
founded  upon  justice.  Until  the  state  has  shown  the  com- 
mission of  a  crime  by  somebody,  it  cannot  jeopard  a  partic- 
ular individual  by  attempting  to  establish  a  connection  on 
his  part  with  it.  In  tbe  judicial  investigation  of  crimes  of  a 
high  grade,  the  rule  for  tbe  proof  of  tbe  corpus  delicti  is 
drawn  with  great  strictness.  In  murder  trials,  the  fact  ot 
the  violent  death  of  tbe  deceased  must  be  determined  by 
absolute  and  direct  evidence,  and  not  made  out  by  inference 
or  presumption. 

§  254.  In  establishing  tbe  physical  connection  of  the 
accused  with  the  crime,  tbe  utmost  latitude  is  allowed  to 
the  prosecution.  It  may  bring  forward  the  direct  testimony 
of  eyewitnesses  to  the  guilty  deed,  or  it  may  base  its  entire 


CIKCUMSTANTIAL   EVIDENCE.  15J 

case  upon  circumstantial  or  presumptive  evidence.  The 
doctrine  that  the  prosecution  and  defence  may  rest  entirely 
upon  circumstantial  proofs  is  common  to  our  system  and 
those  of  European  nations,  with  the  exception  tliat  by  some 
of  the  latter,  the  punishment  of  death  cannot  be  inflicted, 
unless  to  the  evidence  of  circumstances  is  added  the  corrob- 
oration of  the  prisoner's  confession. 

§  255.  A  resort  to  presumptive  proof  is  a  necessity  in 
judicial  trials.  It  is  relied  on,  not  as  some  judges  have 
foolishly  said,  because  it  is  more  cogent  than  the  direct 
testimony  of  eyewitnesses,  but  because  in  the  great  ma- 
jority of  instances  it  is  the  only  species  of  evidence  left  for 
the  prosecution  to  adopt.  Crimes  are  rarely  committed 
openly,  and  so  true  is  this  to  ordinary  human  nature,  that, 
when  an  offence  is  perpetrated  in  public  view,  this  fact  is 
always  relied  upon  as  tending  to  show  a  morbid  state  of 
mind  in  the  accused.  As  we  ascend  in  the  grade  of  crim- 
inality from  mere  assaults  and  petty  thefts,  up  to  murder, 
we  shall  find  the  criminal  more  completely  withdrawing 
himself  from  the  gaze  of  any  other  eye,  and  more  care- 
fully obliterating  all  marks  of  his  presence  and  agency  in 
the  deed.  But  it  is  almost  impossible  to  commit  a  crime 
without  leaving  behind  some  traces,  some  inculpating  in- 
dicia^ which,  combined  and  grouped  together,  draw  like  a 
network  around  the  miserable  offender. 

§  256.  Yet  this  evidence  of  circumstances  has  power  of 
conviction  only  as  it  so  completely  involves  the  accused  that 
no  other  reasonable  hypothesis  than  that  of  his  guilt  is 
adequate  to  explain  the  general  and  combined  appearance. 
To  this  end,  the  circumstances  must  all  be  consistent  with 
each  other,  and  with  the  theory  of  guilt.  What  circum- 
stances can  be  proven,  will  of  course  depend  upon  the  pe- 
culiar features  of  each  case. 

§i257.  In  offering  the  evidence  which  tends  to  show  the 
agency  of  the  defendant  in  the  perpetration  of  the  crime, 
the  prosecution  is  restrained  by  a  rulie  of  the  highest  ini- 


152  THE   rNWKITTEN   LAW. 

poi-tance  to  the  rights  of  the  accused,  and  wliich  draws  a 
broad  line  of  distinction  between  the  procedure  of  our 
courts  and  those  of  the  continental  nations  of  Europe.  This 
rule  demands,  that  all  the  evidence,  whether  direct  or  cir- 
cumstantial, shall  be  confined  to  the  very  transriction  which 
is  the  subject  of  judicial  enquiry.  By  an  inflcxi;  Ic  doctrine 
of  our  law,  the  accused  stands  before  the  jury,  iaA  only  pre- 
sumptively innocent  of  the  crime  under  investigation,  but 
as  guiltless  of  all  evil,  as  a  good  and  honest  citizen  of  the 
state ;  and  his  past  life,  acts,  and  habits  cannot  be  enquired 
into,  with  a  design  to  produce  evidence  of  his  previous  char- 
acter and  moral  traits,  bearing  upon  tlie  issue  to  be  tried. 
The  argument  from  probability  is  entirely  excluded  from 
our  judicial  enquiries.  The  law  does  not  allow  proof  of  a 
former  crime,  so  that  the  jury  may  argue  the  probability 
of  his  having  committed  the  present  one. 

§  258,  In  tliis  particular  the  English  law  difi'ers  from 
most  or  all  of  the  criminal  codes  of  Europe.  According  to 
their  practice,  an  enquiry  is  carefully  made  into  the  history 
of  the  accused  from  childhood.  An  investigation  is  carried 
into  all  his  habits  and  pursuits,  liis  associates  and  friends, 
his  disposition  and  character,  and  any  evidence  is  received 
which  will  tend  to  throw  light  upon  his  mental  and  moral 
peculiarities,  which  will  show  or  tend  to  show  by  what  mo- 
tives he  is,  or  is  likely  to  be  swayed.  These  two  systems 
thus  stand  in  bold  contrast.  English  and  American  M-riters 
are  almost  unanimous  in  lauding  their  own  as  founded  in 
reason,  and  as  calculated  to  protect  the  accused  against 
undue  and  vexatious  pressure  from  the  government.  Tlie 
reasons  for  the  rule  are,  that  the  accused  is  informed  by  the 
indictment  of  the  only  crime  for  which  he  is  to  be  put  on 
trial,  and  is  admonished  to  bo  prepared  to  meet  that  single 
and  specific  charge ;  that  by  i^resenting  on  the  trial,  evi- 
dence of  distinct  and  prejudicial  facts,  running  back  tlirough 
his  past  life,  he  would  be  surprised  at  every  step,  and  un- 
prepared  with  tliose   explanations,  which,   if  op[)ortunity 


INTENT    AND    MOTIVE.  153 

were  given  him,  he  might  offer  to  the  jury,  and  that  thus 
he  would  be  placed  completely  at  the  mercy  of  the  prosecu- 
tion ;  that  if  the  jury  were  told  of  his  former  bad  habits  and 
criminal  acts,  they  would  be  rather  prejudiced  against  him. 
than  aided  in  the  investigation  of  the  offence  which  tlie} 
were  trying  ;  in  short,  that  a  jury  would  misunderstand  and 
misapply  such  species  of  evidence,  and  convict  from  their 
impression  of  his  general  bad  character,  when  there  was 
really  no  complicity  shown  on  the  part  of  the  prisoner  with 
the  particular  crime  charged  in  the  indictment.  These  rea- 
sons are  surely  convincing,  and  as  long  as  we  retain  our 
present  judicial  machinery  with  indictments  and  juries, 
there  can  be  no  relaxation  of  the  rule  under  consideration. 

§  259.  The  guilty  intent  or  design  of  the  prisoner,  which 
is  the  very  essence  of  the  crime,  must  be  established  with 
as  much  certainty  as  the  other  two  elements  that  unite  to 
form  the  offence.  It  is^  under  the  operation  of  our  rules  of 
evidence,  generally  to  be  presumed  only  from  the  character 
of  the  act  which  forms  the  I)ody  of  the  crime  ;  but  in  cer- 
tain instances  this  restricted  range  of  examination  would 
tend  so  much  to  defeat  the  ends  of  justice,  that  courts  have 
gradually  permitted  evidence  of  antecedent  acts,  which,  by 
a  rigid  adherence  to  tlie  rule  last  stated,  should  have  been 
rejected. 

§  260.  Intimately  bound  up  with  the  question  of  the  in- 
tention of  the  party,  is  that  of  the  motive  which  prompted 
him  to  tlie  deed.  If  the  state  be  able  to  show  a  natural 
and  reasonable  motive,  they  have  done  much  to  explain  the 
character  of  the  act,  and  the  design  of  the  perpetrator.  In 
the  assignment  of  the  motive,  a  wide  latitude  is  permit- 
ted, even  when  the  facts  which  disclose  it,  go  to  show  an- 
other and  distinct  felony.  Thus  on  a  trial  for  murder,  the 
prisoner  might  be  proved  guilty  of  another  homicide,  when 
the  motive  would  be  shown  to  be  the  concealment  of  the 
former  crime.  In  a  trial  for  passing  counterfeit  bank  notes 
or  coin,  the  criminal  intent  could  hardly  be  inferred  from  a 


154  THE    UNWRITTEN    LAW. 

Bingle  act,  which  might  have  been  innocently  done  through 
mistake,  but  would  clearl}-  appear  by  proof  that  the  accused 
had  in  possession  or  had  disposed  of  other  spurious  money. 
Thus  necessity  often  requires  the  courts  to  depart  from  gen- 
eral rules,  and  much  of  the  legal  controversies  which  occupy 
the  attention  of  the  judges,  involves  the  determination  of 
the  question  when,  and  to  how  great  an  extent,  such  de\ia- 
tion  is  expedient  and  proper. 

§  261.  Our  penal  code  gives  the  accused  the  benefit  of 
his  own  silence,  and  also  deprives  him  of  the  aid  of  his  own 
testimony.  He  not  only  must  not  be  forced  to  disclose  any- 
thing to  his  own  harm,  but  even  admissions  voluntarily 
made  by  him,  if  they  were  in  response  to  any  inducements 
of  profit  or  hurt,  are  carefully  kept  from  the  jury. .  Nothing 
but  a  confession  freely  given,  uninfluenced  by  any  species 
of  moral  coercion,  is  admissible.  In  this  respect  our  practice 
diflers  essentially  from  that  of  most  European  courts,  which, 
as  will  be  seen  in  the  sequel,  employ  every  means  to  extort 
the  truth  from  the  prisoner. 

§  262.  I  am  strongly  of  the  opinion  that  the  privilege 
which  has  lately  been  accorded  to  the  parties  in  civil  suits, 
to  testify  in  their  own  behalf,  should  be  extended  to  crim- 
inals, and  that  the  prosecution  should  also  be  armed  with 
the  power  to  examine  the  prisoner  touching  the  charge  for 
which  he  is  on  trial.  There  seems  to  be  no  good  reason  for 
opening  the  door  in  the  one  case  and  shutting  it  in  the 
other. 

§  263.  I  shall  close  this  subject  of  criminal  evidence  by 
a  sketch  of  the  procedure  in  some  European  courts,  taking 
the  Bavarian  as  the  type  of  the  distinctive  features  of  the 
German  tribunals.  I  have  already  explained  the  division 
of  their  judges  into  two  classes,  those  who  collect  the  evi- 
dence and  those  who  decide.  Upon  the  apprehension  of  a 
Buspected  criminal,  the  examining  judge  immediately  pro- 
ceeds to  make  the  necessary  examinations  of  witnesses  and 
parties. 


GERMAN    CRIMINAL   TRIALS.  155 

§  264.  The  German  codes  are  extremely  particular  in 
the  character  of  their  proofs,  and  have  established  a  number 
of  definite  rules,  which  to  us  may  seem  arbitrary,  but  which, 
it  is  claimed,  are  based  uj)on  a  sure  foundation  of  expe- 
rience and  common  sense.  As  a  starting  point  in  the  ju- 
dicial investigation,  the  corpus  delicti  must  be  proved  by 
credible  and  sufficient  evidence.  In  murder  cases,  the  de- 
tailed confession  of  the  accused  is  not  competent  to  establish 
the  corpus  delicti^  it  only  proves  the  acts  which  he  de- 
scribes, and  not  the  mortal  result  of  those  acts ;  that — the 
death — must  be  still  further  confirmed  by  extraneous  evi- 
dence. 

§  265.  Persons  produced  as  witnesses  are  divided  into 
classes,  according  to  the  degree  of  confidence  which  is  to  be 
given  to  their  testimony.  The  evidence  of  some  is  consid- 
ered so  untrustworthy  that  it  is  absolutely  rejected.  Tliese 
are  persons  who  have  been  convicted  or  even  strongly  sus- 
pected of  perjury,  falsehood,  or  suppression  of  evidence,  and 
children  under  eight  years  of  age.  Our  own  system  recog- 
nizes one  of  these  disabilities,  by  shutting  the  witness  box 
to  all  who  have  been  convicted  of  felony.  In  the  case  of  a 
young  child,  our  practice  would  ascertain  by  preliminary 
questions  whether  he  showed  an  appreciation  of  the  mean- 
ing and  sanction  of  an  oath,  and  if  so  the  examination 
would  proceed.  The  other  persons  embraced  in  this  class 
of  incompetents,  would  be  allowed  by  us  to  be  sworn,  and 
depose  to  the  jury,  while  their  veracity  might  be  impeached, 
and  their  character  destroyed  by  extraneous  evidence,  if 
possible. 

The  next  class  is  that  of  suspicious  w^itnesses,  and  in- 
cludes accomplices  of  the  accused  in  the  crime,  the  injured 
party,  informers,  youths  under  eighteen  years  of  age,  per- 
sons connected  in  interest  or  relationship  with  the  prisoner, 
or  hostile  to  him,  and  those  of  a  doubtful  general  character. 
All  others  are  sufiicient  or  good  witnesses. 

§  266.  The  object  of  this  particular  classification  of  wit- 


156  THE    UXWKITTEX    LAW. 

nesses  w-ill  be  seen  when  we  consider  the  rules  by  which 
their  testimony  is  couiijared  aud  weighed,  and  the  credence 
given  to  it.  If  two  sufficient  or- good  witnesses  agree  as  to 
a  fact  of  which  they  have  the  evidence  of  their  senses,  the 
testimony  is  considered  as  amounting  to  proof.  The  testi- 
mony of  one  such  witness  is  half  proof  of  tlie  fact,  and 
requires  the  substantiation  of  other  independent  evidence. 
If  two  suspicious  witnesses  concur,  and  corroborate  each 
other  in  their  depositions,  it  is  deemed  equal  in  efiect  to  the 
testimony  of  one  good  or  sutiicient  witness.  Our  law  recog- 
nizes the  correctness  of  the  idea  whicli  lies  at  the  basis  of 
these  apj^areutly  technical  rules,  yet  it  does  not  shape  the 
principle  into  any  definite  provisions  regulating  the  char- 
acter and  weight  of  evidence,  but  leaves  it  vague  and  unde- 
fined, to  be  a])plied  in  each  particular  case  according  to  the 
discretion  or  caprice  of  judge  or  jury.  It  seems  to  me  that 
the  German  criminal  law — recognizing,  as  does  our  own, 
the  fact  that  the  testimony  of  a  large  class  of  persons  de- 
mands a  most  careful  scrutiny,  to  reject  from  it  the  large 
element  of  personal  bias  which  causes  it  to  swerve  from  the 
truth — is  correct  in  generalizing  the  miivei'sal  experience 
of  mankind  into  these  few  simple  and  sharply  defined  rules, 
whose  observance,  though  in  a  few  instances  it  may  work 
injustice  against  the  prosecution,  will  in  the  long  run  pro- 
duce the  greatest  number  of  satisfactory  and  correct  results. 
§  267.  In  the  nature  of  the  evidence  drawn  from  the 
witnesses,  the  German  practice  difters  largely  from  that  of 
our  courts.  The  two  systems  are  founded  upon  opposite 
principles.  The  direct  testimony  of  eyewitnesses,  and  the 
description  of  all  the  pliysical  facts  which  surround  the  case, 
are,  of  course,  received.  Circumstantial  evidence  is  also 
admitted  with  the  same  force  and  efiect,  and  under  the 
same  limitations  as  in  England  and  America.  It  is  in 
regard  to  the  accused  himself  that  the  important  dilierence 
exists.  In  our  criminal  trials  no  rule  is  more  frequently 
quoted,  and  more  strictly  enforced,  than  the  one  which  con- 


GERMAN    CEnnNAL    TRIALS.  157 

mes  the  evidence  to  the  very  matter  in  issue.  As  I  have 
ilready  shown,  this  rule  was  devised  from  a  careful  respect 
for  the  rights  of  the  defendant,  to  protect  him  from  surprise 
at  a  time  when  he  may  be  unable  to  explain  suspicious  and 
damaging  circumstances,  and  also  from  the  composition  of 
the  jury,  who  would  with  difficulty  divest  the  case  of  ex- 
traneous facts,  which  had  no  direct  bearing  upon  the  ques- 
tion to  be  decided  by  them.  Tlie  German  courts  are  ham- 
pered by  no  such  maxim,  and  there  does  not  exist  with 
them  the  necessity  for  its  use. 

§  268.  In  prosecuting  the  investigation,  the  judge  ex- 
amines witnesses  who  have  known  the  accused  from  child- 
hood, and  through  his  whole  life  ;  endeavors  to  trace,  with 
the  utmost  particularity  his  history  from  his  birth  up  to  the 
time  of  arrest ;  dwells  upon  former  suspicious  acts  or  cir- 
cumstances in  which  he  may  have  been  mvolved ;  learns 
his  business,  his  property  or  means  of  livelihood,  his  station 
in  life,  his  friends  and  associates,  his  habits,  his  religious 
opinions  and  practices ;  in  short,  everything  which  will 
tend  to  throw  light  upon  his  real  character  and  disposition. 
As  he  approaches  the  time  of  the  offence,  he  attempts  to 
obtain  a  complete  transcript  of  the  prisoner's  daily  life,  his 
every  act  and  word.  This  is  all  to  ascertain  whether  it  be 
probable  that  he  would  have  committed  the  crime  charged 
against  him.  It  is  a  practical  application  in  a  judicial 
problem  of  the  argument  d  priori. 

In  collecting  evidence,  the  examining  judge  does  not 
restrict  himself  to  that  which  involves  the  prisoner,  but  is 
equally  careful  to  discover  and  secure  all  which  is  in  his 
favor.  The  witnesses  are  examined  se[)arately,  their  depo- 
sitions are  reduced  to  writing  by  a  notary,  and  attested  and 
preserved  for  further  use. 

§  269.  While  the  judge  is  thus  proceeding  with  the  other 
witnesses,  he  will  be  conducting  the  examination  of  the 
accused  himself,  and  more  reliance  is  placed  upon  this  por- 
tion of  the  proofs  than  upon  all  the  rest.     The  examination 


158  THE   rNWEITTEN   LAW. 

is  in  private,  attended  only  by  a  notary.  The  nature  of  the 
charge  is  concealed  from  the  prisoner,  nor  is  he  allowed  to 
see  the  depositions  of  the  witnesses,  or  informed  as  to  the 
nature  of  their  contents.  The  judge  commences  the  inter- 
view, by  exhorting  him  to  tell  the  truth,  and  make  a  full 
disclosure.  He  is  first  asked  if  he  knows  why  he  is  ar- 
rested, and  if  he  professes  to  be  ignorant,  or  gives  a  false  or- 
prevaricating  reply,  he  is  again  warned  to  tell  the  tnith. 
If  he  utterly  refuse  to  answer,  he  is  put  upon  a  diet  of  bread 
and  water  in  solitary  confinement,  until  he  relents.  The 
questions  and  answers  are  carefully  reduced  to  writing  by 
the  notary.  The  judge  is  very  minute  in  his  enquiries, 
gradually  advancing  from  day  to  day  from  tiivial  questions 
to  those  of  the  utmost  moment,  inwrapping  the  culprit  in  a 
maze  of  interrogatories,  apparently  without  definite  design, 
but  really  all  tending  toward  the  grand  final  result,  the 
complete  breaking  down  of  the  defence.  The  exammation 
is  often  a  severe  contest  of  intellects  between  the  officer  and 
the  prisoner,  the  former  endeavoring  to  conceal  as  far  as 
possible  the  object  and  design  of  his  questions,  so  as  to 
afi'ord  little  or  no  opportunity  to  anticipate  the  com-se  of 
mterrogatory,  and  thus  to  be  prepared  to  meet  it ;  and  the 
latter,  on  the  other  hand,  calling  into  action  all  his  powers 
of  mind  to  evade  the  scrutiny  of  the  judge,  to  tell  a  reason- 
able and  consistent  stoiy,  and  to  remain  firm  to  his  narra- 
tive in  the  face  of  every  attack.  The  published  records  of 
trials  afibrd  some  most  remarkable  instances  of  the  astute- 
ness and  caution  of  the  judge,  and  the  shrewdness  of  the 
prisoner,  who  would  for  days  persist  in  the  same  account, 
and,  when  finally  driven  from  it  by  the  advancing  outworks 
of  his  wily  inquisitor,  would  abandon  his  position  M'ith  the 
greatest  apparent  candor,  concede  that  it  was  false,  and 
intrench  himself  behind  new  ramparts,  and,  when  tlius  dis- 
lodged from  one  stronghold  after  another,  would  at  last  con- 
fess the  crime  with  the  utmost  particularity  of  detail,  and 
in  exact  conformity  with  the  statements  of  other  witnesses. 


GEKMAK    CKBILNAL   TRIALS.  159 

Many  guilty  persons  are  thus  driven  by  sheer  weariness  to 
give  up  the  contest,  and  surrender  at  discretion.  When  the 
prisoner  is  very  obstinate,  and  still  persists  in  denying  hit 
guilt,  the  case  may  be  protracted  for  a  long  time,  and  if  he 
succeed  in  exhausting  the  patience  of  the  judge,  he  may  be 
sentenced  to  close  confinement,  even  in  chains  for  life,  but 
•will  not  be  executed.  In  murder  cases,  the  accused  is 
brought  to  the  scene  of  the  homicide  and  placed  before  the 
dead  body,  and  there,  under  the  terror  which  may  be  nat- 
urally excited  by  these  means,  he  is  closely  inteiTogated. 
Timorous  and  weak-minded  persons  may  be  frightened  by 
such  devices  into  a  confession,  or  be  betrayed  into  such  ad- 
missions as,  pursued  with  steadiness  by  the  judge,  will  lead 
to  a  full  disclosure ;  but  with  hardened  criminals,  to  whom 
scenes  of  blood  and  violence  are  familiar,  the  melodramatic 
contrivance  will  have  but  little  good  result. 

§  270.  Another  means  of  startling  the  prisoner  into  an 
acknowledgment  of  the  truth,  is  by  confronting  him  with 
witnesfees.  Should  the  party,  after  numerous  interviews, 
persist  in  a  story  known  to  the  judge  by  the  testimony  of 
witnesses  to  be  false,  he  is  required  on  a  particular  exam- 
ination to  repeat  his  narrative  with  all  the  minuteness  pos- 
sible ;  and  immediately,  with  the  lie  yet  on  his  lips,  and 
suddenly,  he  is  confronted  with  some  witness  who  has  told 
the  truth,  perhaps  an  accomplice,  of  whose  revelations  he 
has  been  kept  in  entire  ignorance.  Being  thus  face  to  face 
with  another  person  whom  he  knows  to  be  acquainted  with 
all  the  facts,  he  is  again  examined  as  to  the  same  matters, 
and  directed  to  explain  and  reconcile  the  discrepancies  be- 
tween his  own  account  and  that  of  the  witness. 

§  271.  A  confession,  to  be  a  sufficient  ground  for  a  sen- 
tence of  death,  must  be  made  in  a  most  formal  manner.  It 
must  be  given  at  a  regular  interview,  before  a  judge  and 
notary,  and  subsequently  repeated  and  confirmed  on  an- 
other day. 

§  272.  The  method  thus  pursued  by  the  German  crim- 


16U  THE   UNWKriTKN    LAW. 

inal  judges,  in  their  official  investigations,  is  certainly  pro- 
ductive of  the  most  astonishing  results.  Those  guilty  of 
the  most  aggravated  crimes,  are  g(?nerally  brought  to  con- 
fession under  the  searching  examination  to  winch  they  are 
subjected.  A  portion  are  driven  to  the  avowal  by  feelings 
of  remorse,  goaded  on  by  the  stings  of  an  angry  conscience. 
This  class,  as  may  be  supposed,  is  by  far  the  smallest  of  all. 
Others  are  influenced  by  a  sentiment  of  shame  at  their 
futile  attempts  to  escape  the  scrutiny  of  the  examiner. 
They  find  themselves  detected  in  lie  after  lie ;  no  story, 
however  plausible,  can  resist  the  keen  perceptions  of  the 
judge;  he  penetrates  all  tlieir  subterfuges j  and  exposes 
them  both  to  themselves  and  to  the  court  as  liars  and  per- 
jurers. Others  yet  are  induced  by  an  expectation  of  miti- 
gating the  punishment  of  their  crimes.  But  by  far  the 
greater  number  are  driven  to  confess  by  sheer  exhaustion, 
by  a  desperate  feeling  of  inability  to  cope  longer  with  their 
subtle  antagonists  ;  and  they  thus  abandon  the  contest,  and 
sullenly  yield  to  their  fate. 

§  273.  The  detail  of  this  method  of  endeavoring  to  force 
the  truth  from  the  breast  of  the  unwilling  criminal  by 
unfair  advantages,  by  mental  torture  and  terrible  sights,  is 
certainly  most  reprehensible.  It  shocks  all  our  instincts 
and  feelings  of  justice  and  humanity.  The  isolation  of  the 
suspected  person  after  his  arrest,  the  denial  of  legal  counsel 
to  aid  and  instruct  him  in  shaping  his  defence,  the  conceal- 
ment from  him  of  the  very  nature  of  the  charge,  are  all 
invasions  of  natural  rights,  which  belong  as  well  to  the 
guilty  as  to  the  innocent.  It  is  these  particulars,  so  evi- 
dently oppressive,  together  with  the  artifices  employed  by 
the  judge  to  entrap  the  party  into  contradictions  in  his 
replies,  all  of  which  are  unnecessary  excrescences  upon  the 
simple  principle  of  a  personal  examination,  wliich  have 
l)rouglit  that  princijile  into  such  disrepute  with  English  and 
American  lawyers  and  legal  writers. 

§  274.    Another   provision  of  these  methods   which   in 


GERMAN    CKIMINAX,   TRIALS.  161 

alike  unnecessary  and  injurious,  is  that  requiring  the  con- 
fession of  a  person  on  trial  before  his  conviction  for  a  cap- 
ital offence.  There  are  no  valid  reasons  by  which  this  rule 
can  be  supported.  All  judicial  evidence  is  imperfect,  yet 
it  is,  and  must  be,  continually  acted  upon.  There  is  no 
distinction  between  the  nature  of  the  proofs  which  establish 
a  murder,  and  that  of  those  which  establish  a  robbery.  As 
the  former  is  an  offence  of  a  higher  grade,  followed  by  a 
severer  penalty,  it  is,  of  course,  incumbent  upon  juries  and 
judges  in  such  cases  to  consider,  compare,  and  weigh  more 
carefully  the  facts  presented  to  them,  that,  if  possible,  all 
sources  of  mistake  may  be  eliminated.  A  heavier  responsi- 
bility rests  upon  the  triers  in  making  their  decision,  de- 
manding the  utmost  caution  and  calm  deliberation  ;  but  the 
character  and  quality  of  the  evidentiary  facts  upon  which  a 
verdict  is  based  are  the  same  for  all  criminal  trials.  A  con- 
fession is  not  a  more  necessary  step  to  conviction  of  a  capital 
offence,  than  to  that  of  larceny  or  an  assault. 

§  275.  The  duties  of  the  examining  judge  cease  with  the 
completion  of  the  evidence.  The  prisoner  is  then  allowed 
the  assistance  of  an  advocate,  who  consults  with  his  client, 
examines  the  proofs,  prepares  a  written  defence  and  argu- 
ment in  his  behalf.  The  evidence,  together  with  the  de- 
fence, is  forwarded  to  the  court  itself,  consisting  of  profes- 
sional judges,  who  examine  the  case,  and  determine  not 
only  the  degree  of  the  crime,  but  the  punishment  to  be 
inflicted.  It  will  be  seen  that  the  judges  who  decide  the 
questions  of  fact,  do  not  have  the  aid  of  the  personal  inspec- 
tion of  the  witnesses,  which  is  so  properly  guaranteed  to 
our  criminal  courts,  and  to  parties  accused,  by  the  organic 
law  ;  but  this  serious  defect  is  partially  supplied  by  the 
exceeding  minuteness  and  particularity  of  the  examination, 
both  of  the  witnesses  and  of  the  prisoner,  pursued  by  the 
^inferior  judges.  But  no  careful  attention  to  detail  will 
atone  for  the  great  injustice  done  to  a  prisoner  by  sub- 
jecting him  to  the  hazard  of  a  decision  affecting  his  life 
11 


162  THE   UNWRITTEN   LAW. 

or  liberty,  made  by  a  court  who  are  utter  strangers  to  the 
witnesses. 

§  276.  I  have  thus  given  a  somewhat  extended  sketch  of 
these  German  methods  of  criminal  procedure,  in  order  to 
afford  a  most  usefal  comparison  with  our  own.  To  those 
who  have  grown  up  under  the  influence  of  the  English  com- 
mon law,  the  imperfections  of  this  continental  system  are 
evident.  Its  excellences  will  appear  no  less  remarkable  to 
those  who  examine  its  workings  and  reflect  upon  the  design 
of  all  judicial  enquiries.  The  English  trial  is  more  dra- 
matic, the  German  more  thorough ;  the  one  searches  after 
truth  in  an  indu'ect  way,  rejecting  many  trustworthy 
sources,  the  other  leaves  no  means  untried,  and  in  theory, 
and  for  the  most  part  in  practice,  does  not  stop  short  of 
absolute  certainty  ;  the  one  anxiously  throws  its  safeguards 
about  the  prisoner,  to  prevent  the  state  from  encroaching 
upon  his  rights,  the  other  regards  all  those  rights  as  for- 
feited, or  subservient  to  the  general  welfare ;  the  one  con- 
victs upon  presumptions,  the  other  studiously  avoids  all 
presumptions. 

§  277.  The  French  criminal  procedure  is  now  a  mixture 
of  the  English  and  continental  forms,  which  are  entirely 
unfitted  to  work  together  with  any  satisfactory  result. 
Juries  are  used  in  criminal  cases  alone  to  decide  upon  the 
guilt  or  innocence  of  the  accused.  Tlie  court  consists  of 
several  judges,  the  chief  of  whom  is  called  the  president. 
The  foundation  of  the  proceeding,  the  acte  d^ accusation^ 
has  already  been  described.  On  the  trial  the  a/yte  is  first 
read  to  the  court  and  jury.  Tlie  witnesses  for  the  prosecu- 
tion are  first  examined,  and  are  followed  by  those  of  the 
defence.  The  whole  examination  and  cross-examination 
are  conducted  by  the  president.  Tlie  French  law  renders 
incompetent  as  witnesses,  the  father  and  mother  of  the 
accused  and  all  other  ancestors  in  the  direct  ascending  line, 
sons  and  daughters  and  all  others  in  the  direct  descending 
line,  brothers  and  sisters,  husband  and  wife,  and  informers 


FKENCH   CRIMINAL   TRIALS.  163 

who  are  rewarded  for  their  disclosures.  Informers  who 
receive  no  recompense  are  permitted  to  testify,  but  their 
character  must  be  explained  to  the  jury.  Tlie  rules  of  evi- 
dence resemble  rather  those  of  the  Geraian  system  than 
those  of  the  English.  In  addition  to  the  testimony  of  wit- 
nesses, the  accused  himself  is  interrogated.  This  examina- 
tion is  also  conducted  by  the  president.  Although  the  code 
does  not  define  the  character  of  the  proceeding,  or  prescribe 
the  nature  of  the  questions  to  be  put  by  the  court,  yet  in 
practice  it  is  usual  for  the  president  to  employ  all  the  arti- 
fices possible  upon  a  public  trial  to  entrap  and  defeat  the 
accused.  His  guilt  is  assumed  in  the  structure  and  purport 
of  the  interrogatories ;  browbeating  is  continually  resorted 
to ;  unfair  advantages  are  taken  and  every  means  used  to 
discomfit  and  break  down  the  defendant.  His  past  life  is 
explored,  a  general  investigation  made  into  his  character, 
habits,  and  pursuits,  and,  of  course,  much  elicited  strongly 
tending  to  prejudice  any  jury  of  laymen. 

§  278.  In  this  system  there  is  nothing  to  commend, 
everything  to  censure.  The  official  position  and  duties  of  a 
presiding  judge,  especially  in  criminal  trials,  require  that 
he  should  be  removed  far  above  even  the  appearance  of 
partisanship,  that  he  should  hold  the  scales  of  justice  with 
stern  impartiality  between  the  state  and  the  accused. 
Where  the  facts  are  exclusively  left  to  a  distinct  tribunal, 
the  judge  is  to  determine  the  law,  without  reference  to  the 
■  consequences  to  either  party  ;  >vith  the  question  of  guilt  or 
innocence  he  has  no  connection.  He  is  to  observe  that  the 
proper  forms  of  judicial  proceeding  are  carefully  regarded, 
and  he  should  scrupulously  refrain  from  influencing  or  at- 
tempting to  influence  the  jury  in  forming  their  conclusions 
and  arriving  at  a  verdict.  The  French  procedure  violates 
all  of  these  salutary  rules.  The  judge  enters  the  arena  as  a 
partisan,  and  the  jury  must  catch  his  evident  leaning  and 
desire  for  a  conviction,  so  that  the  accused  party  is  deprived 


164r  THE   rNWRITTEN   LAW. 

of  the  very  safeguard  which  the  jury  affords  to  the  criminal 
on  triaL 


y.   Of  the  Judgment  as  the  Result  of  the  Decision  of  the 
Facts  and  the  Law. 

§  279.  After  the  evidence  has  explained  tlie  facts  to  the 
court  or  jury,  tlie  next  step  in  the  orderly  progress  of  an 
action  is  their  decision,  and  the  statement  of  the  legal  rule 
which  is  involved  therein,  and  which  demands  a  judgment 
establishing:  the  relative  rights  and  duties  of  the  suitors. 
"Whether  the  tribunals  consist  of  judges  and  jury,  or  of 
judges  alone,  these  two  functions  are  different,  and  require 
to  be  separately  jDerformed.  Rules  of  law  are  abstract  prop- 
ositions ;  but  for  their  practical  application  in  judicial  trials, 
the  circumstances  out  of  which  they  spring,  and  the  mu- 
tual relations  of  the  parties,  must  be  fully  defined,  before 
they  can  be  made  efficient  in  determining  private  rights. 

§  280.  In  the  courts  of  law  there  are  two  methods  in 
which  the  jury  may  perform  their  duties.  In  the  one  case, 
they  may  render  a  verdict,  called  special,  by  which  they 
ascertain  and  set  forth  the  entri-e  facts,  so  as  to  present,  as 
they  have  drawn  it  from  the  evidence,  a  complete  history 
of  the  transactions  referred  to  by  the  action,  but  do  not 
determine  whicli  of  the  parties  is  entitkd  to  a  judgment. 
To  the  facts  thus  formally  agreed  upon,  and  officially  an- 
nounced to  the  court,  the  judges  apply  the  proper  rule  of 
law,  and  finally  decide  the  controversy,  and  adjudge  in 
favor  of  one  of  the  litigants. 

§  281.  By  the  second  and  ordinary  method,  the  judge 
announces  the  legal  principles,  prior  to  the  decision  of  the 
jury,  in  the  form  of  an  oral  charge  addressed  to  them  as  a 
guide  in  their  consideration  of  the  evidence,  and  a  help  to 
reach  a  correct  conclusion  which'  shall  definitely  fix  the 
riirhts  and  duties  of  the  suitors.  The  charge  thus  delivered 
before  the  exact  state  of  facts  is  officially  ascertained,  can- 


THE   JUDGMENT   OF  THE   COITRT.  165 

not  be  a.  simple  and  single  statement  of  the  law  which 
affects  the  case ;  it  must  be  somewhat  hypothetical,  and 
accommodated  to  the  various  points  of  view  from  which  the 
controversy  may  be  viewed.  The  verdict  thus  rendered  is 
said  to  be  general,  declaring  absolutely  for  which  party  the 
judgment  must  be  given,  and  defining  the  particular  prop- 
erty, real  or  personal,  or  the  amount  of  pecuniary  damages 
included  therein. 

§  282.  The  judges  of  those  courts  which  decide  the 
whole  controversy,  possessing  at  once  a  knowledge  of  the 
law  which  is  to  govern  them,  and  of  the  facts  to  which 
these  rules  are  appropriate,  must  follow  the  same  order, 
although  they  may  not  keep  the  two  elements  which  unite 
in  the  judgment,  so  entirely  distinct. 

§  283.  In  England  and  in  America  there  is  ample  pro- 
vision made  for  a  review  in  a  more  solemn  and  authori- 
tative manner  of  the  rulings  of  law  made  by  the  judge  at 
the  trial.  The  facts,  when  once  passed  upon  by  a  jury,  are 
definitely  settled  and  taken  to  be  the  absolute  truth,  except 
in  those  few  instances  where  the  triers  had  fallen  into  a 
palpable  mistake.  By  far  the  greatest  portion  of  the  duties 
of  the  Superior  Courts  in  England  and  America,  consists  in 
reviewing  the  propositions  of  law  made  by  a  judge  at  the 
trial,  affirming  them  and  the  judgment  if  they  were  correct, 
or  overruling  them,  reversing  the  judgment,  and  ordering  a 
new  trial,  if  they  were  erroneous. 

§  284.  These  decisions  of  the  courts  thus  solemnly  ex- 
amining the  hasty  rulings  at  the  trial,  constitute  tlie  formal 
and  authoritative  utterances  of  the  unwritten  'jurisprudence 
of  the  nation.  In  the  actual  determination  of  the  nile  of 
law  in  each  particular  action  before  them,  the  judges  have 
as  guides  the  precedents  which  have  been  establislied  by 
the  same  or  other  tribunals  in  former  cases,  and  which  are 
generally  contained  in  published  volumes  of  official  reports. 
These  precedents,  extending  back  to  the  infancy  of  our 
jurisprudence,  are  the  foundations  of  the  law,  upon  which 


166  THE    UNWRirrEN    LAW. 

successive  generations  of  judges  have  built  up  the  growing 
fabric.  The  i-ules  which  they  contain  are  often  exactly  ap- 
plicable to  the  circumstances  of  the  particular  case  under 
consideration,  when  the  courts  have  only  to  follow  the 
course  marked  out  for  them  ;  but  they  commonly  require  to 
be  modified,  extended,  or  restricted,  by  processes  of  reason- 
ing to  meet  analogous  instead  of  identical  facts. 

§  285.  The  effect  of  the  judgment  of  the  court  upon  tli 
rights  and  duties  of  the  parties  varies  with  the  nature  of  the 
controversy  and  the  subject  matter  invohed  in  the  dispute. 
In  a  large  class  of  cases  it  consists  in  a  judicial  order  or 
dii'ection  that  the  defeated  suitor  shall  pay  to  the  other  a 
sum  of  money,  which  payment  a  ministerial  officer,  gen- 
erally the  sheriff,  may  enforce  by  seizing  and  selling  a  suffi- 
cient amount  of  the  judgment  debtor's  property,  and  even 
in  certain  actions,  by  confining  his  person.  Another  class 
requires  the  delivery  of  specific  chattels,  or  the  transfer  of 
the  possession  of  lands,  and  obedience  may  be  compelled  by 
the  sheriff.  Judgments  in  equitable  actions  are  more  par- 
ticular and  comprehensive  in  their  details,  depending  en- 
tirely upon  the  peculiar  features  of  each  case,  and  are  en- 
forced under  the  direction  of  the  court  itself. 

One  effect  common  to  judgments  in  all  actions  regularly 
brought  and  prosecuted  should  be  particularly  noticed.  As 
long  as  a  judgment  stands  unreversed  by  a  higher  court,  it 
is  absolutely  conclusive  as  to  the  facts  in  dispute  in  the 
action,  and  the  rights  of  the  parties  depending  upon  those 
facts  ;  it  cannot  be  doubted  or  denied  or  questioned  in  any 
other  proceeding,  but  must  be  taken  as  establishing  absolute 
verity  in  the  controversy.  When  once  a  judgment  has  been 
rendered,  the  party  who  deems  himself  aggrieved  must 
take  some  direct  proceeding  to  procure  it  to  be  reversed  or 
set  aside ;  otherwise  he  must  submit  to  the  decision  of  the 
court,  and  all  the  world  must  regard  that  decision  in  the 
particular  action  as  the  truth.     This  rule  is  founded  upon 


EFFECTS   OF   THE   JUDGMENT.  167 

the  dictates  of  public  policy,  whicli  seeks  to  put  an  end  to 
controversies,  to  reach  some  fixed  and  stable  results,  and  to 
prevent  doubts  and  uncertainty  as  to  the  ownersliip  of 
property  and  the  relations  of  individuals  to  each  other  and 
to  the  state. 


CHAPTER  III. 

THE  UNWRITTEN  LAW,  OR  LAW  OF  JUDICIAL  DECISION:  ITS 
FORMS,  METHODS,  AND  SPIRIT  OF  DEVELOPMENT. 

§  286.  I  HAVE  described  in  tlie  preceding  chapter  the 
several  instruments  and  means  by  and  through  which  the 
plastic  unwritten  jurisprudence  has  been  built  up,  the 
courts  with  their  various  branches  and  classes,  and  the 
actions  by  which  this  judicial  machinery  is  put  in  motion  : 
I  shall  now  proceed  to  examine  somewhat  more  carefully 
the  nature  and  characteristics  of  this  legal  development,  the 
methods  by  which  it  has  'been  evolved,  and  the  form  which 
it  has  assumed,  and  shall  compare  this  product  with  a  mu- 
nicipal law  entirely  embodied  in  statutes.  The  principle 
of  legal  development  is  common  to  the  systems  of  all  coun- 
tries which  have  emerged  from  a  condition  of  barbarism, 
and  entered  upon  a  course  of  progressive  improvement.  As 
a  nation's  law  is  most  intimately  connected  with  their  civil- 
ization, and  is  in  some  sort  an  exponent  of  the  people's 
attainment  in  general  culture,  it  is  natural  to  find  it  par- 
taking of  the  same  gradual  growth,  impressed  by  many  of 
the  same  influences,  culminating  at  the  same  epoch,  and 
declining  with  the  same  weakness.  As  civilization  is  a 
product  of  religion,  philosophy,  letters,  arts,  trade,  com- 
merce, government,  and  above  all,  the  ethnic  life  of  a 
peop.e,  so  do  these  elements  enter  into  and  shape  their  law. 
In  its  own  infancy,  and  that  of  the  state,  a  system  of  juris- 


LEGAL   DEVELOPMENT.  169 

prudence  is  rude,  severe,  simple,  arbitrary,  reflecting  the 
wants,  customs,  and  liabits  of  thouglit  of  the  individual 
citizens.  It  embraces  but  a  few  subjects,  is  not  reduced  to 
general  principles  and  maxims,  but  its  fragmentary  rules 
are  devised  to  answer  the  few  popular  needs.  It  endeavors 
to  provide  some  remedy  for  those  evils  to  which  the  com-* 
munity  is  exposed,  but  consciously  makes  no  provision  for 
the  future  and  all  of  its  yet  unborn  interests. 

§  287.  Still,  in  the  institutions  of  this  imperfect  law  lie 
the  germs  of  a  development  coextensive,  in  scope  and  per- 
fectness,  with  the  capacity  and  inherent  life  of  the  national 
stock.  All  tribes  and  nations,  even  in  their  most  uncul- 
tivated state,  do  not  show  the  same  power  to  organize  legal 
s^'stems,  and  unfold  legal  ideas.  The  Romans  confessedly 
hold  the  first  rank  in  their  aptitude  for  legislation.  In  the 
earliest  ages  of  their  existence  as  a  distinct  community,  we 
find  them  possessing  a  municipal  law,  rude  and  severe 
enough,  but  relating  to  most  of  the  important  divisions  of 
property  and  personal  rights  which  are  contained  in  the 
philosophical  systems  of  the  moderns.  Semi-barbarous  as 
they  undoubtedly  were,  their  jurisprudence  was  a  compre- 
hensive and  enlightened  code,  when  compared  with  those 
promulgated  by  the  Franks  after  their  conqufjst  of  the 
Gallic  province,  under  the  names  of  the  Salic  and  Kipuarian 
laws,  or  those  issued  by  the  early  Saxon  or  Danish  kings, 
all  of  which  related  chiefly  to  violent  injuries  to  persons, 
while  they  merely  glanced  at  the  rights  of  property  and  the 
methods  of  administering  justicet 

§  288.  The  municipal  laws  of  the  principal  European 
countries  started  from  small  and  meagre  beginnings,  and 
have  gradually  and  steadily  progressed,  until  they  have 
reached,  or  are  approaching  their  culminating  point.  This 
growth  has  been  continuous,  broken  by  no  great  faults  or 
displacements  in  the  successive  strata,  extending  with  one 
common  life  from  the  germ  to  the  matured  fruit.  This  is  par- 
ticularly true  of  the  jurisprudence  of  Rome  and  of  England. 


170  LEGAL   DEVELOPMENT. 

§  289.  The  law,  reflecting  and  expressing  tlie  advancing 
civilization  of  the  people,  has  been  evolved  \>y  means  of 
statutes  and  judicial  decisions.  Certainly  in  the  Koman 
Kepublic  and  the  earlier  periods  of  the  Empire,  and  in 
England  (and  I  believe  in  all  the  states  of  modern  Europe), 
'the  action  of  courts  or  its  equivalent  has  exerted  immeas- 
urably the  greater  influence  upon  this  onward  march.  As 
the  municipal  law  of  Kome,  extending  through  a  completed 
life,  from  its  birth  amid  tlie  barbarous  Latin  tribes  who  col- 
lected on  the  sacred  hills  by  the  banks  of  the  Tiber,  to  its 
death  and  entombment  in  the  codes  of  Justinian,  and  that 
of  England,  still  full  of  energy  and  vitality,  with  power  to 
go  forward  toward  yet  unattained  degrees  of  perfection, 
exhibit  in  the  clearest  light  the  workings  of  this  principle 
of  self-development,  I  shall  confine  myself  in  the  present 
chapter  to  tracing  the  method  of  their  growth,  with  only 
incidental  allusions  to  the  legislation  of  other  European 
countries.  In  fact,  these  two  systems  may  be  taken  as  the 
best  exemplifications  of  a  national  jurisprudence.  Having 
much  in  common,  both  in  ideas  and  forms,  they  yet  present 
strong  and  most  interesting  contrasts.  They  are  essentially 
the  products  of  peoples  animated  with  a  diflerent  ethnic  life. 
The  one,  through  much  struggle  and  many  severe  contests, 
has  preserved  and  perfected  the  grand  thought  of  individual 
freedom  ;  the  other  has,  from  the  beginning,  maintained  its 
allegiance  to  the  imposing  idea  of  national  power. 

§  290.  One  very  important  element  of  the  law,  as  a 
source  of  many  positive  rujes  and  principles,  and  a  modifier 
of  the  social  organization  of  the  countries  of  Modern  Eu- 
rope, was  the  feudal  system.  A  sufficiently  particular  ac- 
count of  this  phase  of  civilization  is  given  in  the  second 
part  of  this  work,  and  I  now  refer  to  it  simply  as  one  of  the 
fniitful  seeds  of  legal  ideas.  Its  effect  upon  society,  the 
different  ranks,  classes,  and  status  of  the  citizens,  and  the 
forms  of  government,  I  do  not  stop  to  notice.  The  modify- 
ing influence  which  it  exerted  upon  private  jurisprudence 


EFFECT   OF   FEUDALISM.  171 

has  been  almost  entirely  confined  to  those  portions  which 
relate  to  the  property  in,  and  rights  over,  lands.  This  sys- 
tem, taking  its  distant  origin,  without  doubt,  from  the  tribal 
customs  of  the  Germans,  began  its  growth  long  after  the 
barbarian  conquest,  and  attained  its  highest  point  of  splen- 
dor and  power  in  the  10th,  11th,  and  12th  centuries.  It 
spread  over  the  whole  of  Western  and  Southern  Europe, 
and  has  left  a  deposit  of  its  principles  in  the  legislation  of  all 
countries  from  Italy  to  England.  Hence  we  have  borrowed 
our  di  visions  of  property  into  real  and  personal ;  the  rules 
which  prescribe  the  kinds  of  interest  which  a  person  may 
hold  in  lands,  and  those,  which  regulate  descents  and  inher- 
itances. I  would  not  be  understood  to  mean  that  the  feudal 
customs  themselves  embraced  all,  or  any  great  part  of  the 
minute  and  intricate  regulations  by  which  the  modern  Eng- 
lish law  governs  this  species  of  property,  so  that  they  could 
be  transferred  and  incorporated  bodily  into  our  jurispru- 
dence ;  but  from  those  customs  as  premises,  the  courts,  by 
logical  process  of  reasoning,  have  constructed  most  of  that 
portion  of  our  municipal  law  to  which  I  refer,  except  when 
the  systematic  development  has  been  interfered  with,  and 
broken  in  upon,  by  statutes. 

§  291.  The  private  law  of  Italy,  Spain,  Germany,  France, 
and  other  "Western  countries  of  the  Euroj^ean  continent,  is 
based  principally  upon  that  of  Rome,  so  that  a  thorough 
study  of  the  latter  is  as  necessary  to  the  understanding  of 
the  municipal  law  of  these  nations,  as  that  of  the  English  is 
to  an  American.  No  portion  of  legal  history  is  more  in- 
teresting than  that  which  traces  the  wide-spread  effect  of 
Roman  jurisprudence  upon  modern  peoples  ;  which  watches 
it  struggling  through  opposing  influences  of  the  greatest 
power,  until  it  finally  attained  its  position  as  the  foundation 
of  so  many  national  systems.  Connected  with,  and  mod- 
ifying this  principal  element  in  the  continental  states,  is  a 
large  admixture  of  feudal  principles  and  local  or  general 
customs.     Before  the  codification  under  Napoleon  I.,  it  can 


172  LEGAL   DEVELOPMENT. 

hardlj  be  said  that  France  possessed  any  municipal  law,  in 
the  strict  use  of  the  term.  Its  jurisprudence  was  so  broken 
up  by  provincial  customs,  and  administered  by  local  courts, 
or  parliaments,  that  the  unity  necessary  to  the  idea  of  a 
national  law  was  lost.  The  condition  of  England  would 
undoubtedly  have  been  the  same,  had  the  Saxon  dynasty 
and  institutions,  with  their  county  courts  acting  independ- 
ently of  each  other,  been  perpetuated.  This  organization 
sufficed  for  the  imperfect  civilization  of  our  rude  ancestors, 
but  in  time,  as  society  should  progress,  and  these  folk  courts 
should  be  replaced  by  more  effective  tribunals,  around  each 
as  a  centre,  there  would  have  sprung  up  a  separate  system 
of  law.  Indeed,  England  is  not,  even  at  the  present  day, 
without  some  evident  traces  of  this  effect.  Certain  counties 
now  possess  peculiar  customs,  which  are  recognized  as  law 
within  their  limits,  but  do  not  extend  to  the  whole  king- 
dom. The  Norman  conquest  introduced  the  idea  of  an 
empire,  and  made  an  imperial  legislature,  imperial  courts, 
and  an  uniform  imperial  code  of  laws  possible. 

§  292.  The  law  of  England  and  of  the  American  States 
is  most  composite  in  its  nature.  It  has  no  one  predominant 
element  underlying  it,  and  giving  shape  and  color  to  all  other 
portions  which  have  been  added  from  time  to  time ;  noth- 
ing which  bears  to  it  the  relation  which  the  Eoman  holds 
to  the  French  jurisprudence.  Still,  it  has  its  own  peculiar 
character  most  clearly  marked,  a  character  which  distin- 
guishes it  from  the  legislation  of  all  other  European  nations. 
Whatever  is  drawn  in  from  foreign  sources,  loses  its  indi- 
viduality, and  becomes  blended  with  the  general  mass  as 
though  it  were  the  product  of  native  growth.  Saxon,  feu- 
dal, Roman  principles,  even  those  borrowed  from  the  public 
law,  suffer  a  change  and  are  made  English.  Our  municipal 
law  is  no  patcliwork  ;  its  parts  are  mutually  dependent ;  no 
portion  could  be  lopped  off  without  disturbing  the  balance 
of  the  whole. 

§  293.  The  earliest  contributions  were  from  the  Saxons. 


THE   LAW    AN   EXPONENT   OF   CIVILIZATION.  173 

\  et  we  have  preserved  of  them  only  certain  institutions  and 
ideas,  rather  than  any  positive  principles  and  rules.  These 
institutions  and  ideas  indeed  pervade  and  give  tone  to  the 
entire  system,  making  themselves  felt  in  the  whole  course 
of  legislation,  whether  judicial  or  parliamentary  ;  for  they 
include  the  trial  by  jury,  the  interference  of  the  people  in 
the  decision  of  judicial  contests,  the  care  for  individual  free- 
dom, and  the  preservation  of  local  self-government.  Fol- 
lowing the  Saxons,  the  Normans  gave  the  idea  of  nation- 
ality, the  organization  of  the  courts,  and  borrowed  from 
Rome  and  recast  in  an  English  mould  the  forms  of  legal 
and  equitable  actions.  During  the  reign  of  the  Norman 
kings,  the  feudal  regime  was  perfected,  which  furnished  the 
foundation  for  the  law  of  real  property.  Mingled  with 
these  elements,  are  many  portions  drawn  from  the  Roman 
law  ;  yet  it  cannot  be  said  that  they  have  formed  any  great 
part  of  the  fundamental  principles  and  forms  of  onr  juris- 
prudence ;  they  have  rather  been  woven  into  the  fabric, 
adding  beauty,  completeness,  and  utility  to  the  whole.  But 
far  the  greatest  number  of  our  legal  rules  have  been  in- 
vented or  evolved  from  former  admitted  premises,  to  meet 
the  requirements  of  a  progressive  civilization. 

§294.  .Thus  the  municipal  law  has  constantly  reflected 
the  peculiar  character  of  the  national  culture.  During  the 
earlier  periods  of  its  history,  after  the  full  establishment  of 
the  feudal  system,  and  while  its  influence  was  most  keenly 
felt  upon  all  classes  of  society,  the  power  and  interests  of 
the  hierarchal  aristocracy  were  greatly  predominant  in  the 
nation.  Tlie  feudal  lords  held  vast  domains  and  possessed 
privileges  which  rendered  them  only  less  than  independent 
sovereigns  ;  the  mass  of  the  people  were  their  tenants,  either 
honorable  or  slavish.  During  this  epoch,  the  general  course 
of  leo-islation,  both  that  emanating  from  the  parliaments 
and  that  wrought  out  by  the  co"  U'ts,  had  a  tendency  to  pre- 
serve and  strengthen  these  privileges.  Rules  were  devised 
which  retained  lands  in  the  hands  of  the  feudal  owners ; 


174  LEGAL   DEVELOPMENT. 

transfers  were  impeded  by  vexatious  restrictions ;  estates 
were  carefully  preserved  in  families  by  inheritances ;  the 
rights  of  creditors  were  subordinated  to  those  of  the  pro- 
prietor. As  there  was  little  of  commerce,  trade,  or  manu- 
factures, the  courts  were  not  employed  in  developing  the 
law  of  personal  property,  and  the  endeavors  made  by  par- 
liament to  control  these  feeble  and  struggling  interests,  were 
suggested  by  an  entire  ignorance  of  political  economy,  and 
of  the  measures  which  contribute  to  the  welfare  of  the  state. 
But  as  the  overpowering  influence  of  the  feudal  aristocracy 
began  to  wane,  the  law  gave  evidence  of  the  change,  by 
devising  means  to  evade  the  restrictions  which  had  been 
thrown  over  landed  property  in  the  interest  of  the  great 
owners.  The  initiative  was  made  by  the  Court  of  Chancery 
through  the  introduction  of  uses,  or  beneficiary  estates, 
which  have  been  described  in  the  preceding  chapter,  by 
which  transfers  were  made  easy  and  frequent,  and  the  heavy 
feudal  burdens  were  removed.  The  superior  lords,  however, 
whose  rights  were  thus  invaded,  rallied  in  their  defence,  and 
procured  a  statute  of  parliament  to  be  passed  in  the  reign 
of  Henry  YIII.,  with  the  design  to  destroy  this  innovation 
so  contrary  to  the  feudal  ideas,  and  restore  the  original  pol- 
icy. But  the  progress  of  tlie  nation  is  more  powerful  than 
the  edicts  of  legislatures,  and  irresistibly  carries  with  it  par- 
liaments, courts,  institutions,  and  laws.  This  statute  op- 
posed but  a  feeble  barrier  to  the  improvements  in  the  Eng- 
lish jurisprudence,  for  the  courts  found  means  to  evade  its 
intention  and  preserve  the  beneficiary  estates,  and,  legis- 
lating upon  it  as  a  basis,  gradually  have  constructed  the 
rules  and  maxims  of  that  portion  of  the  municipal  law 
which  relates  to  real  property,  as  tliey  have  existed  to  the 
present  day,  except  when  modifications  have  been  intro- 
duced by  the  legislature.  While  one  grand  division  of  the 
law  of  property  was  thus  built  up  on  the  foundation  of  feu- 
dal customs,  greatly  modified  by  an  idea  borrowed  from 
Rome,  the  other  branch,  which   relates  to  ownership  in 


ACTUAL   LEGISLATION   OF   COURTS.  176 

movables,  and  the  formation,  interpretation,  and  enforce- 
ment of  personal  contracts,  was  left  meagre  and  imperfect, 
jet  it  was  sufficient  for  the  popular  wants.  But  after  the 
governmental  policy  of  England  was  settled  by  the  great 
rebellion  and  the  revolution  that  banished  the  House  of 
Stuart,  and  the  civil  liberty  of  the  people  was  ensured,  the 
national  energies  were  directed  into  new  cliannels.  The 
cosmopolitan  interests  of  commerce,  of  trade,  of  manufac- 
tures, with  their  countless  multitude  of  relatioES  and  forms 
of  business  and  contracts,  became  predominant.  Personal 
property  has  arisen  from  its  position  of  comparative  ob- 
scurity, and  asserted  its  superiority  over  lands.  This 
change  furnished  new  work  for  courts  and  legislatures,  and 
the  English  judiciary  has  since  been  engaged  in  completing 
a  system  of  the  law  of  movables  and  contracts,  including 
that  which  paiiicularly  refers  to  the  merchant  and  mariner, 
until  now  their  law  reflects  their  national  character  of  a 
trading  and  commercial  people.  Thus  we  can  discern  from 
this  sketch  the  essential  features  of  our  municipal  law,  that 
it  is  conservative  in  retaining  a  strong  hold  on  the  past,  pro- 
gressive as  it  constantly  reaches  forward' to  the  future. 

§  295.  My  especial  purpose  in  the  present  chapter  is  to 
illustrate  the  methods  in  which  the  courts  have  addressed 
themselves  to  their  duties  in  producing  this  result ;  how 
they  have  seized  new  material  and  worked  it  up  into  the 
rising  structure  ;  how  they  have  extended  the  original  nar- 
row and  arbitrary  prmciples,  until  they  have  developed 
into  an  all-embracing  jmisprudence,  free,  elastic,  self-adapt- 
ing, reproductive,  containing  in  its  own  bosom  the  seeds  of 
an  immortal  growth. 

I  have  already  described  in  the  preceding  chapter  the 
instrumentalities  employed  in  this  progressive  work,  and 
have  shown  that  it  was  not  accomplished  by  formal  legisla- 
tion, but  by  the  trial  and  decision  of  individual  cases  as 
they  arose  for  adjudication.  It  is  necessary  to  the  full  com- 
prehension of  the  genius  of  our  legal  system,  and  the  per 


176  LEGAi   DEVELOPMENT. 

ception  of  tlie  ]3eculiar  life  which  animates  it,  that  we 
should  form  a  clear  conception  of  that  which  differences  the 
action  of  our  courts  and  of  our  legislatures. 

§  296.  Under  our  polity,  both  courts  and  parliaments 
legislate.  It  is  an  entire  misconception  of  the  functions  of 
the  judicial  tribunals,  to  describe  them  as  wanting  the  legis- 
lative power,  but  as  possessing  only  the  capacity  to  declare 
the  law  to  exist,  as  though  from  time  immemorial  a  legal 
principle  or  rule  had  lain  hidden  and  unnoticed,  awaiting  a 
discoverer,  until  an  adventurous  judge  had  brought  it  to 
light.  A  large  part  of  the  law  did  indeed  lie  hidden,  exist- 
ing in  a  possible  state,  in  old  admitted  principles,  but  only 
as  the  future  harvests  lie  enwrapped  in  a  single  kernel  of 
grain.  And  those  portions  Avhich  owe  their  existence  as 
positive  rules  to  the  enactments  of  legislatures,  were  also  as 
truly  and  potentially  embraced  in  earlier  and  more  general 
maxims,  as  those  which  have  emanated  from  comis.  The 
legislature,  as  well  as  the  judges,  have  but  followed  the  lead 
ings  of  the  national  life  ;  they  have  both  been  compelled  by 
the  same  vital  forces  in  their  work  of  production. 

§  297.  The  English  courts  and  parliament  received  the 
municipal  law  several  hundred  years  ago,  an  incomplete  and 
meagre  system  in  all  respects ;  they  have  both  since  been 
constantly  engaged  in  building  upon  this  foundation  ;  they 
exhibit  to  us  now  a  stnicture,  vast,  syunnetrical,  harmo- 
nizing in  its  grand  divisions,  equally  harmonious  in  its 
minutest  details.  Each  day  they  have  added  something  to 
the  rising  work.  They  have  drawn  their  materials  from  all 
quarters ;  from  historical  institutions ;  froiii  pure  ethical 
principles ;  from  arbitrary  customs ;  from  philosophical 
deductions ;  from  considerations  of  mere  expediency  and 
from  religion  itself.  They  have  passed  over  into  foreign 
lands  in  search  of  products  that  will  supply  the  native  want, 
borrowing  from  imperial  Eome ;  from  the  codes  of  the 
Middle  Age  merchants  ;  from  the  tribunals  of  all  civilized 
comitries.     They  have  not  disdained  to  visit  the  shops  and 


THEOET   OF   PAELIAMENTART    LEGISLATION.  177 

counting  houses,  the  marts  and  exchanges  of  their  own 
tradesmen  and  manufacturers,  and  adopt  their  customs  and 
modes  of  business,  and  amalgamate  them  with  the  general 
law.  They  have  banished  the  ancient  arbitrariness,  and 
caused  the  whole  mass  to  be  penetrated  and  infused  with 
the  presence  of  a  pure  morality. 

§  298.  That  the  greater  part  of  this  immense  and  most 
beneficial  result  has  been  accomplished  by  the  persistent 
action  of  the  courts,  no  one  will  question,  and  it  is  folly,  a 
mere  perversion  of  language  to  support  a  theory,  to  say 
that  the  tribunals  have  not  legislated  as  really  and  as  effect- 
ively as  has  the  parliament.  Yet  while  both  have  truly 
created  law,  the  respective  methods,  which,  from  their  con- 
stitution and  peculiar  duties,  they  have  employed,  are  essen 
tially  different.  The  legislation  of  the  one  is  conscious,  that 
of  the  other  unconscious.  The  legislature  perceives  some 
rule  of  law  which  is  a  disturbing  force  in  the  system,  work- 
ing injustice  to  individuals  or  communities ;  its  attention  is 
drawn  to  the  subject  by  the  complaints  of  the  sufferers ;  it 
examines,  consults,  deliberates,  not  so  much  with  a  desire 
to  preserve  tlie  whole  jurisprudence  harmonious  and  logical, 
but  rather  with  a  hope  to  repress  the  evil  and  produce 
an  immediate  benefit.  It  embodies  its  decision,  which  is 
generally  based  upon  motives  of  mere  expediency,  in  a 
repealing  statute,  and  the  obnoxious  rule  ceases  at  once  to 
exist,  it  is  no  longer  law.  Or,  in  the  progress  of  society, 
new  complications  of  business  have  arisen,  new  ideas  have 
beeii  widely  disseminated,  and  new  needs  are  felt.  To  meet 
the  exigency,  the  legislature  enacts  a  jDositive  statute,  cre- 
ating some  additional  regulation,  which  is  imposed,  fully 
developed  and  energetic  as  law,  upon  the  whole  state.  But 
as  human  foresight  is  imperfect  and  limited,  and  the  results 
of  this  legislation  cannot  be  clearly  apprehended,  it  not 
unfrequently  happens  that  the  statute  is  followed  by  conse- 
quences entirely  unexpected  by  its  framers,  and  which  are 
felt  throughout  the  whole  extent  of  the  legal  relations  of  the 
12 


178  LEGAL   DEVELOPMENT. 

people.  In  correcting  the  single  evil,  or  supplying  the  one 
need,  the  way  may  have  been  opened  for  multitudes  more 
fonnidable. 

§  299.  The  distino-uishino:  characteristic  of  the  functions 
of  a  legislator,  is,  that  he  consciously  presents  to  himself  a 
particular  end  to  be  accomplished,  in  modifying,  restricting, 
or  adding  to  the  existing  rules  of  the  municipal  law.  The 
distinguishing  characteristic  of  his  work  is,  that  it  is  per- 
fected, so  far  as  any  inherent  capacity  for  growth  and  adap- 
tation in  itself  is  concerned,  the  moment  it  passes  into  the 
condition  of  positive  law.  It  has  no  pliability,  cannot  con- 
tract or  expand,  admits  of  no  exceptions  ;  no  power  but  the 
one  creating,  can  avail  to  alter  or  repeal  it. 

§  300.  The  methods  of  the  courts  are  all  different.  The 
judges  sometimes  do  not  claim  to  possess,  and  do  not  often 
assume,  the  power  in  tei*ms  and  professedly  to  repeal  an  old 
well-established  legal  rule  or  principle ;  nor  do  they  con- 
sciously and  with  avowed  purpose  undertake  to  add  the 
new.  Their  work  of  reconstruction  and  creation  is  rather 
inferential  and  consequential,  than  direct.  In  performing 
their  peculiar  duties,  the  primary  work  is  not  to  model  the 
national  jurisprudence,  but  to  do  justice  between  suitors 
according  to  legal  forms  and  maxims.  It  is  true  that  this 
is  far  from  their  most  important  function,  but  it  is  only 
through  it  that  the  greater  national  result  of  perfecting  the 
whole  law  is  evolved. 

§  301.  When  a  controversy  is  brought  before  the  courts 
for  decision,  they  have,  as  the  groundwork  on  which  to  pro- 
ceed, only  the  facts  of  the  particular  case.  These  circum- 
stances comprehend  certain  relations  of  the  parties,  which 
are  to  be  investigated  and  adjusted,  as  far  as  possible, 
according  to  t^e  requirements  of  the  law  acknowledged  ai 
already  existing.  Whenever,  as  will  continually  happen, 
Borne  relation  is  discovered  which  has  been  left  unprovided 
for  by  any  known  rule,  the  judicial  power  of  legislation  is 
called  into  action,  and  the  necessary  formula  is  constructed. 


THEORY    OF    THE    ACTION    OF    COUKTS.  179 

never  arbitrarily,  but  rather  as  a  reasonable,  necessary,  and 
logical  inference,  deduced  from  familiar  principles, 

§  302.  The  peculiar  tone  and  character  of  the  reasoning 
which  the  courts  have  adopted  in  this  process  of  evolving 
the  new  out  from  the  old,  the  particular  and  practical  out 
from  the  general,  has,  of  course,  varied  greatly  with  the 
condition  of  the  whole  nation,  with  its  state  of  advancement, 
and  its  conceptions  of  right  and  justice.  Here  it  is  that  the 
judicial  tribunals  have  felt  most  keenly  the  power  of  the  na- 
tional life,  and  the  influences  of  a  perfecting  civilization.  In 
former  times,  the  judges  approached  the  investigation  of  the 
questions  presented  to  them  with  narrow  and  contracted  views, 
and  their  deductions  were  cast  in  the  mould  of  the  severest 
logic  ;  now  a  more  liberal  and  expanded  policy  is  followed  ; 
greater  breadth  is  permitted ;  cases  are  conformed  to  general 
principles  ;  results  are  made  more  uniform  and  harmonious. 
By  the  freer  admission  of  these  ideas  of  right,  the  courts 
have  brought  the  whole  jurisprudence  into  a  nearer  agree- 
ment with  the  maxims  of  a  23erfect  morality,  and  have  thus 
imparted  to  it  somewhat  of  the  spirit  of  the  ethical  portion 
of  the  Christian  religion. 

§  303.  But  we  will  examine  a  little  closer  the  general 
course  of  this  judicial  action.  In  no  single  case  before  them, 
do  the  judges  assume  to  lay  down  a  rule  which  shall  em- 
brace all  others  of  an  analogous  character ;  their  duty  is 
confined  simply  to  the  discussion  and  fixing  of  the  legal 
rights  and  duties  of  the  parties  growing  out  from  the  exact 
circumstances  of  the  particular  controversy.  They  are  thus 
plainly  distinguished  from  the  parliamentary  legislator ; 
they  approach  the  law  from  a  dilferent  standpoint,  and  are 
relieved  from  much  of  the  heavy  responsibility  which  rests 
upon  him.  He  legislates  directly  for  a  nation,  sure  that  his 
work  will  affect,  in  one  way  or  another,  the  entire  people ; 
they  legislate  directly  for  the  parties  to  a  legal  action,  with- 
out  reference  to  the  consequences  upon  others,  and  not 
knowing:  whether  a  similar  case  will  ever  again  ai'ise.     It  is 


180  LEGAL    DEVELOPMENT. 

true  that  their  decisions  or  enactments,  wliicli  primarily 
have  reference  to  the  individuals  who  are  suitors  before 
them,  are  extended  to  all  others  who  may  be  in  exactly  the 
same  condition  ;  but  this  result,  however  much  it  may  tran- 
scend the  other  in  its  importance  to  the  community,  is,  so 
far  as  the  courts  themselves  are  concerned,  secondary,  and 
does  not  present  itself  as  a  controlling  element  in  shaping 
their  announcements  of  the  law. 

§  304.  As  a  single  decision  is  confined  in  its  scope  to  the 
legal  rules  involved  in  the  mutual  relations  of  the  parties  to 
one  judicial  action,  and  in  those  of  persons  identically  sit- 
uated, it  will,  in  general,  produce  a  much  less  powerful 
effect  for  good  or  evil,  upon  the  whole  jurisprudence,  than  a 
statute,  but  still  it  adds  its  contribution  to  the  total  mass  of 
the  unwritten  law,  which  thus  grows  evenly  and  slowly, 
and  the  new  portions  are  kept  in  constant  and  intimate  con- 
nection with  the  old.  Thus  it  becomes  possible  for  persons 
entering  into  relations  unprovided  for  by  any  existing  posi- 
tive rules,  to  infer  witli  a  great  degree  of  certainty,  what 
the  law  will  be  that  is  to  control  them.  Tliey  have  the 
same  premises  which  the  courts  assume,  and  applying  a 
like  course  of  reasoning,  they  can  arrive  beforehand  at  the 
conclusions  which  the  judges  will  afterward  reach.  This 
process  of  anticipating  the  action  of  the  tribunals  forms  the 
principal  duty  of  counsel  in  advising  clients  upon  their 
legal  ]-ight3  ;  and  herein  lies  one  of  the  great  points  of  su- 
periority of  the  unwritten  law  over  statutes  and  codes,  a 
subject  to  which  I  shall  refer  more  particularly  in  a  subse- 
quent part  of  this  chapter. 

§  305.  In  deciding  a  pai-ticular  case,  or,  in  other  words, 
in  announcing  the  rule  by  which  the  rights  and  duties  of 
the  parties  are  establislu^d,  the  courts,  to  a  great  extent,  are 
controlled  by  precedents ;  and  this  is  only  saying  that  the 
existing  law  is  generally  binding  upon  judges,  as  well  as 
upon  legislators,  and  the  whole  community.  Precedents 
are  simply  former  decisions,  made  by  competent  courts,  and 


EFFECT   OF   PRECEDENTS.  l&l 

preserved  either  in  the  memory  of  judges  and  lawyers,  or, 
as  is  usual,  collected  in  printed  volumes,  known  as  reports. 
The  principles  of  law  contained  in  these  precedents,  have 
lost  their  character  of  mere  argumentative  deductions,  and 
passing  into  the  limits  of  positive  jurisprudence,  have  be- 
come the  bases  upon  which  new  portions  of  the  structure  are 
built  up.  Over  them  the  judges  have  virtually  the  same 
control  which  the  legislature  has  over  statutes,  j-et  this  su- 
pervision is  generally  exercised  in  a  different  manner. 

§  306.  In  the  investigation  of  a  case  pending  before 
them,  in  endeavoring  to  find  the  proper  rule  of  law  to  apply 
to  its  circumstances,  the  courts  may  be  met  by  a  precedent, 
which,  involving  the  same  or  analogous  facts,  would  serve 
as  a  ready  and  sure  guide  for  their  judgmeut.  If  this  pre- 
cedent be  acknowledged,  the  duty  of  the  judges  is  simple 
and  easy  ;  they  have  only  to  conform  their  application  of 
the  law  to  the  former  decision,  and  briug  the  case  under  its 
controlling  power.  As  the  national  jurisprudence  of  Eng- 
land and  America  has  been  greatly  extended,  and  its  prin- 
ciples already  multiplied,  it  constantly  happens  that  the 
judicial  tribunals  have  only  to  exercise  this  somewhat 
f;ubordinate  function  of  applying  familiar  rules,  instead  of 
calling  into  play  their  more  important  power  of  creating  or 
reconstructing  the  law.  By  far  the  larger  number  of  the 
controversies  which  engage  the  attention  of  the  courts,  de- 
pend in  whole  or  in  part,  for  their  correct  issue,  upon  some 
decision  already  made  or  statute  ah*eady  passed. 

§30T.  On  the  other  hand,  the  judges,  instead  of  im- 
plicitly yielding  to  the  requirements  of  the  former  prece- 
dent, may  be  satisfied  that,  although  a  part  of  the  national 
jurisprudence,  it  is  essentially  wrong  ;  that  it  is  opposed  to 
other  well-settled  principles  ;  that  it  is  a  disturbing  force  in 
the  otherwise  harmonious  system,  and  that,  if  followed,  the 
evil  consequences  will  spread  wider  and  -sAider,  To  avoid 
so  disastrous  a  result,  and  to  preserve  the  law  symmetrical 
and  uniform,  they  have  two  courses  to  pursue.     They  may 


182  LEGAL   DEVELOPMENT. 

in  terms  and  intentionally  overrule  and  unllify  the  obnox- 
ious decision,  and  repeal  the  rule  established  by  it.  This 
incontestable  power  of  the  courts  is,  however,  only  exerted 
ill  instances  where  the  incorrectness  of  the  precedent  is 
glaring,  and  has  been  used  much  more  frequently  by  Amer- 
ican than  by  English  courts.  Some  writers,  and  even  some 
judges  have  denied  that  the  power  of  the  courts  to  overrule 
a  former  decision  resembles  that  of  the  legislature  to  repeal 
a  statute.  Influenced  by  the  theory  that  the  courts  possess 
no  creative  function,  but  only  a  capacity  to  declare  the  law, 
which  is  assumed  to  exist  as  a  perfect  whole  above  and 
behind  these  tribmials,  they  maintain  that  the  principle 
established  by  the  faulty  precedent  was  never  clothed  with 
the  attributes  of  law.  This,  however,  is  a  mere  evasion ; 
the  constant  experience  of  judges,  lawyers,  and  suitors 
demonstrates  its  unsoundness.  As  long  as  the  obnoxious 
precedent  stands  unassailed,  it  has  all  the  elements  of  law  ; 
it  determines  individual  rights  ;  it  may  be  followed,  instead 
of  being  rejected  by  the  courts,  and  thus  its  rule  may  be 
repeatedly  stamped  with  official  approbation.  In  fact,  not 
a  few  of  the  positive  maxims  of  our  jurisprudence  univer- 
sally admitted,  are  based  upon  precedents  wrongly  decided, 
to  which  the  judges  haye  preferred  to  yield,  rather  than  dis- 
turb the  existing  j-ights  of  property.  It  cannot,  therefore, 
with  any  reason  be  denied,  that  the  courts  of  England  and 
America  do  possess  a  power,  seldom,  however,  exercised,  of 
directly  repealing  an  incorrect  rule  of  the  unwritten  law, 
and  substituting  another  in  its  stead,  as  completely  and 
eft'ectually  as  is  held  by  parliament  or  legislature. 

§  308.  It  is  one  of  the  chief  excellences  of  this  division 
of  the  national  jurisprudence  that  this  function  is  rarely 
used,  for  the  judges  are  inclined  to  resolve  the  difficulty  by 
another  method,  as  favoraT)le  to  suitors,  and  more  advan- 
tageous to  the  law,  than  the  one  just  described.  This  con- 
sists in  limiting  and  circumscribing  tlie  efiect  of  the  prece- 
dent, in  discovering  some  element  of  difference,  small,  per- 


JTTDICIAL    ACTION    WITHOUT    PRECEDENTS.  183 

haps,  between  it  and  the  case  under  examination,  by  which 
the  latter  may  be  distinguished  and  withdrawn  from  the 
other's  control.  From  this  starting  point  of  departure,  the 
courts  will  proceed  cautiously  and  smoothly,  until,  after  a 
series  of  decisions,  each  somewhat  in  advance  of  the  pre- 
ceding one,  the  law  is  brought  back  to  its  true  position,  and 
the  fault  is  corrected.  It  is  in  this  manner  that  the  old 
rules,  while  they  are  made  the  foundations  of  the  new  work, 
are  gradually  superseded,  as  they  become  unfitted,  in  the 
national  progress,  to  subserve  the  wants  of  the  people. 
There  is  no  sudden  break  or  shock  ;  at  no  given  point  can 
it  be  assumed  that  a  radical  change  has  been  made  ;  and  still 
the  result  is  evident,  that  useless  and  cumbrous  rubbish, 
once  valuable  as  portions  of  the  jurisprudence,  is  constantly 
being  laid  aside,  and  replaced  by  other  material,  which  will, 
in  turn,  suffer  the  same  fate,  when  it  has  accomplished  its 
purpose. 

§  309.  But  it  may  happen,  and  in  the  earlier  stages  of 
the  developing  process  of  any  branch  of  the  law,  it  often 
did  happen,  that  the  courts  had  no  direct  or  analogous  judi- 
cial precedents  to  guide  them  in  their  decisions.  Here, 
then,  was  afforded  another  opportunity  for  practical,  if  not 
avowed  legislation.  Here  came  into  play  the  peculiar  dis- 
tinctive functions  of  these  tribunals  in  unfolding  the  un- 
written or  common  law.  A  new  rule  must  be  created  ;  and 
as  the  judges  cannot  rely  upon  any  direct  or  analogous  pre- 
cedents as  the  basis  of  their  judgments,  they  must  fall  back 
for  their  premises,  upon  general  principles,  either  contained 
in  some  peculiar  national  institutions,  or  embodied  in  nat- 
ural right  and  equity.  An  example  of  the  former  of  tliese 
piremises  may  be  found  in  the  customs  of  the  feudal  system, 
from  which,  by  pure  logical  deduction,  the  rules  of  real 
estate  law,  as  they  existed  in  England  before  being  modified 
by  statutes,  were  originally  inferred.  In  the  doctrines  of 
the  natural  law,  the  judges  have  assumed  an  ample  founda- 
tion on  Avhich  to  build  up  those  portions  of  our  municipal 


184  LEGAL   DEVELOPMENT. 

jurisprudence  which  regulate  the  vast  interests  connected 
with  personal  property  and  contracts.  One  of  the  maxims 
of  universal  justice,  early  adopted  as  a  positive  rule,  that  no 
legal  wrong  committed  or  suft'ered,  should  be  left  without 
an  adequate  remedy,  has  been  fruitful  in  important  and 
comprehensive  results.  Resting  upon  tliis  equitable  prin- 
ciple, through  the  aid  of  the  actions  of  trespass  on  the  case 
and  of  assumpsit,  which  I  have  already  described  as  being 
so  elastic  that  they  could  be  easily  adapted  to  a  vast  va- 
riety of  circumstances,  the  judges  of  England  and  America 
have  been  able  to  constnict,  from  almost  no  definite  prece- 
dents, the  great  mass  of  commercial  and  mercantile  law. 
Thus,  to  illustrate,  it  was  mainly  through  the  agency  of 
enlightened  courts,  that  the  numerous  niles  which  regulate 
the  use  and  effect  of  promissor}^  notes  and  bills  of  exchange, 
and  establish  the  rights  and  liabilities  of  the  various  parties 
to  these  species  of  commercial  contracts,  have  been  evolved 
and  firmly  settled.  It  must  not  be  supposed  that  these  con- 
tracts were  originally  introduced  by  the  judiciary  ;  they 
had  become  familiar  to  merchants,  and  a  mercantile  usage 
had  grown  up  respecting  them,  which,  however,  had  no 
binding  authority  as  law,  until  the  courts  intervened,  and, 
applying  to  these  customs  the  test  of  sound  reason,  rejected 
such  as  were  wrong,  and  made  strictly  legal  such  as  were 
just.  In  the  exercise  of  this  power  of  judicial  legislation. 
Lord  Holt,  chief  justice  of  the  King's  Bench,  in  the  reign  of 
William  and  Mary,  in  deciding  a  celebrated  case,  borrowed 
from  the  Roman  law,  and  incorporated  into  the  English 
juiisprudence,  that  entire  branch  which  relates  to  a  species 
of  contract  called  bailments,  which  has  since  been  greatly 
extended  by  the  labors  of  other  judges.  In  like  manner, 
the  law  of  marine,  fire,  and  life  insurance,  has  been  devel- 
oped in  a  comparatively  recent  period.  Indeed,  by  far  the 
gi-eater  pai-t  of  the  practical  rules  which  relate  to  contracts 
of  all  descriptions,  except  those  in  writing  and  sealed,  have 
been  evolved  from  a  few  general  princiiDles,  which  ai  e  them- 


BUPEEIOKITT    OF    COURTS   TO   LEGISLATDRES.  1S5 

selves  a  part  of  that  imr;ersal  code,  which  the  Romans  called 
jus  gentium^  and  the  moderns  denominate  the  law  of  nature. 
Hence  there  is  a  very  marked  general  agreement  between 
this  portion  of  the  national  jurisprudence  of  all  enlightened 
countries ;  indeed  it  is  not  national ;  it  is  cosmopolitan, 
since  reason  and  justice  are  not  restrained  by  the  bounda- 
ries of  different  lands,  or  the  divisions  of  different  races. 

§  310.  From  the  review  of  the  general  course  of  proce- 
dure of  courts  given  in  the  preceding  chapter,  and  the  fore- 
going statement  of  the  theory  and  essential  characteristics 
of  their  action,  it  is  evident  that  they  have  played  an  im- 
portant part  in  the  work  of  creating  the  municipal  law  of 
England  and  America.  From  the  comparison  between 
their  methods  and  those  of  legislative  bodies,  it  is  equally 
plain  that  they  have  an  inherent  power  and  capacity  to 
contribute  to  the  orderly  and  steady  development  of  the 
national  jurisprudence,  which  is  not  possessed  by  parlia- 
ments and  legislatures.  Indeed,  it  seems  hardly  possible, 
that  a  popular,  deliberative  assembly,  made  up  of  delegates 
from  various  classes  of  society,  and  representing  different 
and  often  conflicting  interests,  unskilled  in  the  science  of 
law,  and  often  unfamiliar  with  the  details  of  the  national 
history  and  the  working  out  of  the  grand  principles  which 
have  exerted  so  powerful  an  infl.uence  upon  the  national 
civilization,  should  be  able  to  construct  a  symmetrical  and 
complete  jurisprudence,  or  even  to  effect  harmonious 
changes  and  additions  in  one  already  existing.  This  inca- 
pacity is  so  fully  understood  and  acknov-dedged,  that,  when 
propositions  have  been  pending  before  the  English  parlia- 
ment or  American  legislatures,  to  enact  comprehensive 
amendments  to  the  municipal  law,  it  has  been  the  almost 
invariable  practice  to  commit  the  whole  subject  to  expe- 
rienced jurists,  and  to  accept  the  result  of  their  investiga- 
tions as  the  expressions  of  the  legislative  will. 

§311.  When  we  compare  that  portion  of  our  jurispru- 
dence, which  has  found  its  authoritative  expression  in  stat- 


186  LEGAL   DEVELOPMENT. 

utes,  witli  that  embodied  in  the  judicial  decision,  we  shall 
see,  from  a  very  cursory  examination,  that  the  latter  is 
united,  self-dependent,  logical,  steadily  improving,  yielding 
continually  to  the  influence  of  equitable  ideas  ;  in  short, 
that  it  completely  reflects  the  contemporaneous  civilization, 
keeps  step  with  the  great  national  wants,  aids  the  national 
advance,  and  is  everywhere  infused  with  the  ethnic  life  of 
the  people.  It  presents  the  fact  of  a  development  commen- 
surate with  the  requirements  of  society,  in  the  highest  de- 
gree. The  organization  and  functions  of  our  courts  render 
this  result  not  only  natural  but  necessary. 

§  312.  The  statute  law  of  England  and  America,  on  the 
contrary,  is  in  a  great  measure  fragmentary,  and  some- 
times, indeed,  contradictory.  Not  being  based  upon  any 
necessary  premises  found  in  the  national  institutions  or  in 
the  maxim, s  of  natural  justice,  and  worked  out  from  these 
by  a  logical  sequence  of  steps,  it  is  often  arbitrary  and  diffi- 
cult to  be  understood,  as  its  meaning  must  be  gathered 
mainly  from  the  mere  language  of  the  enactment,  unaided 
by  any  great  underlying  pi'inciples  ;  it  often  breaks  in  upon 
the  symmetry  of  the  whole  body  of  jurisprudence,  and 
introduces  confusion  where  the  intention  was  simply  to  sup- 
ply useful  amendments. 

§  313.  Other  modem  nations  of  Europe  have,  to  a  cer- 
tain extent,  used  the  same  means  of  developing  a  common 
law,  or  law  of  judicial  decision,  but  in  none  of  them  have 
the  courts  possessed  that  transcendent  power  and  influence 
M'liich  they  enjo}'^  in  England  and  America.  Their  judges 
may,  pei-haps,  have  been  clothed  with  more  arbitrary  dis- 
cretion in  .some  particulai-s,  but  the  sj^stem  of  free  courts, 
untrammelled  by  governmental  authority,  independent  of 
the  executive  or  legislature  in  the  exercise  of  their  judicial 
functions,  producing  a  complete  liberal  and  reasonable  mu- 
nifipal  law,  has  come  to  its  liighest  point  of  excellence  in 
these  countries,  where  the  j^rinciples  of  freedom  have  been 
most  deeply  planted  in  the  national  life  and  most  carefully 


DEVELOPMENT   OF   THE   ROMAN    LAW.  187 

guarded  in  the  national  history.  No  fact  in  our  legal  his- 
tory better  illustrates  this  truth  than  the  gradual  extinction 
of  the  institution  of  serfdom  in  England,  through  the  suc- 
cessive limitations  placed  upon  it  by  the  judiciary  ;  but  as 
this  subject  will  be  treated  of  at  large  in  Part  Third,  Avhen 
I  come  to  speak  of  personal  rights,  I  will  postpone  to  that 
place  any  further  mention  of  it  than  this  reference. 

§  314.  The  same  principle  of  a  judicial  development  of 
the  great  body  of  the  municipal  law,  which  so  strongly 
characterizes  our  own  institutions,  also  lay  at  the  foundation 
of  the  Eoman  jurisprudence,  and,  beyond  all  question,  the 
acknowledged  superiority  of  that  system  is  due  to  the 
opportunity  thus  given  for  the  Roman  ideas  of  order  and 
power  to  unfold  themselves  in  a  natural  and  free  method. 

§  315.  In  the  earliest  stages  of  the  Eoman  common- 
wealth, there  existed  customs,  according  to  which  justice 
was  administered.  The  first  important  step  in  the  progress 
was  the  collection  of  these  customs  and  their  reduction  to 
a  statute  or  codified  form  in  the  511.  Tables,  which  were 
promulgated  in  the  year  451  b.  c.  Subsequently  to  this 
epoch,  and  continuing  through  the  entire  period  of  the  rise 
of  the  system  toward  perfection,  we  find  at  the  imperial 
city  and  in  the  provinces,  important  magistrates,  praetors, 
and  presidents,  who  contributed  largely  to  the  p]-oduction 
of  the  unwritten  jurisprudence.  Side  by  side  with  these 
judicial  officers  was  a  class  of  legal  writers,  who  made  the 
law  a  special  study,  and  who  were  known  as  the  juriscon- 
sults. How  far  the  expositions  and  writings  of  these  jurists 
were  received  as  positive  law,  necessarily  binding  upon  the 
citizens,  it  is  difiicult  to  say.  "With  us,  the  conclusions  of 
text  writers,  when  they  do  not  rest  entirely  upon  decided 
cases,  are  at  best  merely  argumentative ;  however  reason- 
able they  may  appear,  however  consistent  with  equity  and 
justice  and  established  principles,  they  cannot  be  called  in 
any  full  sense  of  the  term,  Law^  until  they  have  received 
the  sanction  of  some  competent  tribunal.     At  a  certain 


188  LEGAL   DEVELOPMENT. 

period  of  the  Roman  empire,  the  productions  of  some  of 
these  jurists  possessed  a  higher  value  than  the  works  of  our 
text  writers.  By  an  edict  of  the  Emperor  Yalentinian  III., 
in  the  year  426  a.  d.,  the  praetor  was  ordered  to  conform 
his  decisions  to  the  writings  of  five  distinguished  juriscon- 
sults, who  had  flourished  long  before,  or,  in  case  of  a  disa- 
greement between  them,  to  a  particular  one  of  their  num- 
ber, named  in  the  statute.  But  this  was  in  the  decadence 
of  the  Eoman  jurisprudence,  after  its  life  had  died  out  and 
it  was  only  existing  as  a  splendid  memento  of  a  former 
grandeur.  But  beyond  all  question  the  jurists  were  a  great 
aid  to  tbe  magistrates  in  the  discharge  of  their  official 
duties.  They  were  a  class  of  trained  men,  accustomed  to 
the  theory  and  practice  of  jurisprudence,  occupied  in  exam- 
ining and  giving  opinions  upon  particular  cases  presented 
to  them,  and  in  writing  treatises  upon  entire  branches  or 
departments  of  the  law.  After  the  Greek  philosophy  was 
studied  at  Rome,  they  infused  a  more  genial  and  compre- 
hensive spirit  into  legal  science,  and  brought  it  into  closer 
relations  with  natural  justice.  In  fact,  it  is  not  in  decisions 
of  i:>r8etor8  preserved  untouched,  like  the  reports  of  our  own 
courts,  that  the  Roman  law  has  l)ecn  handed  down  to  us  ;  it 
is  ratber  to  the  works  of  the  principal  jurists,  which  have 
escaped  destruction,  or  which  were  incoi'porated  in  the  com- 
pilations of  Justinian,  that  we  must  go  for  our  kno\vledge 
of  that  law  as  it  once  existed  a  living  and  working  system. 

§  316.  In  the  same  manner,  if  the  direct  work  of  the 
English  and  American  courts,  the  long  series  of  their  de- 
cisions, should  be  destroyed,  succeeding  generations  could 
easily  collect  our  whole  jurisprudence  from  the  treatises  of 
such  writers  as  Coke,  Blackstone,  Comyn,  Preston,  Kent, 
Story,  Parsons,  and  many  othei's.  Yet  it  cannot  be  said 
that  these  men,  great  and  illustrious  though  they  were,  as 
mere  authors  played  any  immediate  part  in  creating  the 
English  and  American  municipal  law.  They  have  collected 
the  scattered  decisions  of  judges,  extracted  their  essential 


METHODS    OF   THE    EOMAN    PEiETOES.  189 

principles,  arranged,  methodized,  classified  them ;  have 
shown  their  mutual  connection  and  dependence,  and  have 
thus  presented  the  system,  or  some  sj)ecial  branch  of  it,  as  a 
whole.  They  have  even  gone  farther,  and  by  this  very  pro- 
cess of  systematizing,  as  well  as  by  new  applications  and 
suggestions,  have  greatly  aided  subsequent  judges.  I  be- 
lieve, and  in  this  opinion  I  have  the  authority  of  Hugo,  that 
the  office  of  the  Roman  jurisconsults  in  perfecting  the  law, 
was  quite  analogous  to  that  of  our  judicial  writers. 

§  317.  ITotwithstanding  the  very  important  functions  of 
these  learned  men,  in  collating,  classifying,  and  suggesting, 
the  magistrates  with  the  Romans,  like  the  judges  with  us, 
were  the  authorized  creators  and  declarers  of  the  unwritten 
law,  or  law  of  judicial  decision.  But  while  the  action  of 
the  praetors  in  developing  the  law  was  essentially  the  same 
as  that  of  our  Superior  Courts,  the  method  which  they 
adopted  to  accomplish  the  object  was  somewhat  different  in 
form,  although,  as  I  believe,  identical  in  principle.  I  have 
shown  in  the  preceding  chapter,  that,  in  the  actual  judicial 
work,  these  magistrates  invented  and  used  actions,  which 
bore  a  striking  resemblance  in  form  and  design  to  those 
employed  in  the  English  procedure.  But  the  praetors  did 
not  announce  and  elaborately  set  forth  the  law  by  judg- 
ments or  opinions  rendered  in  each  particular  case.  Instead 
of  waiting  until  a  controversy  should  be  presented  to  them, 
to  consider  the  facts,  and  deduce  and  apply  the  proper  rule, 
they  endeavored  to  anticipate  the  questions  which  should 
arise,  and  devise  general  maxims  which  should  include  all 
particular  instances.  As  in  the  progress  of  the  people  these 
were  found  insufficient,  others  were  from  time  to  time 
added,  and  thus  the  municipal  law  was  constantly  accumu- 
lating its  resources.  Tlie  magistrates  were  chosen  for  a 
short  term  of  office,  and  at  the  time  of  entering  upon  their 
duties,  they  published  a  formal  statement  known  as  the 
edict,  in  which  they  announced  the  legal  principles  and 
rules  by  which  they  proposed  to  be  governed  in  the  admin- 


190  LEGAL   DEVELOPMENT. 

istration  of  justice.  At  first,  eacli  praetor  as  lie  entered 
upon  office,  unquestionably  had  the  power  to  publish  an 
edict  entire! J  different  from  that  of  his  predecessors  ;  but  the 
custom  grew  up,  and  was  at  length  firmly  established,  that 
each  new  magistrate  should  adopt  the  legislation  of  the  one 
whom  he  succeeded,  imj^roving  it  as  he  saw  proper,  by 
additions  and  amendments.  By  this  means  the  edict  of  the 
praetor  became  connected  and  continuous,  constantly  in- 
creasing in  extent  and  comprehensiveness,  and  including  in 
itself  the  essential  features  of  that  portion  of  the  municipal 
law  which  was  the  result  of  judicial  decision.  A  more  de- 
tailed examination  of  the  manner  in  which  the  Roman  law 
grew,  would  require  me  to  anticipate  a  subject  which  be- 
longs to  another  chapter.  What  I  have  already  stated  is 
sufficient  to  illustrate  the  statement  that  the  Roman  and 
the  English  systems  were  mainly  evolved  in  an  identical 
way,  by  a  judiciary  working  independent  of  the  legislature  ; 
while  the  statute  was  subordinate  and  practically  of  less 
moment  in  creating  the  rules  of  private  law.  Tliis,  how- 
ever, was  true  only  during  the  ages  of  the  growth  and  per- 
fection of  the  republic  and  einpire  and  of  its  jurisprudence. 
"When  both  began  to  decline,  and  the  animating  life  was 
extinct,  and  progress  ceased,  the  statutes  or  constitutions  of 
the  emperors  became  almost  the  only  source  of  law.  The 
magistrates  were  left  only  with  the  official  duty  of  expound- 
ing and  applying  the  recorded  will  of  the  head  of  the  state ; 
and  finally  the  whole  mass,  statute  and  judicial,  was  col- 
lected into  the  vast  compilations  of  Justinian. 

§  318.  In  the  progress  of  law  toward  equity  and  justice, 
Christianity  has  certainly  exerted  a  controlling  influence. 
The  morality  of  the  gospel  is  so  pure,  the  precepts  which 
issued  from  the  mouth  of  the  Divine  Teacher  and  became 
the  basis  of  religion,  are  so  marked  by  perfect  justice  and 
I'ight,  that  it  is  but  natural,  that  nations  who  accept  Chris- 
tianity as  true,  should  strive  to  conform  to  this  high  model, 
the   rules  which   govern   tlie   intercourse   of  citizens,  and 


EFFECT   OF   CHEISTIANITT   ON   THE   LAW.  191 

prescribe  their  rights  and  duties  in  all  relations.  Still 
Christianity  has  always  acted  as  an  element  from  without ; 
it  does  not  obliterate  national  and  ethnic  distinctions  and 
peculiarities ;  no  code  has  been  built  upon  it  as  the  sole 
foundation  ;  it  has  rather  interfered  with  and  moulded  the 
form  of  the  development  from  ideas  and  j)rinciples  having 
no  reference  to  religion.  The  Roman  people  and  the 
Roman  law  retained  their  distinctive  character,  in  the  midst 
of  all  the  changes  wrought  in  them  by  Christian  teaching. 
The  English  law  is  eminently  Christian,  although  it  carries 
the  ineffaceable  marks  of  its  tribal  sources,  and  its  national 
institutions. 

§  319.  The  system  of  jurisprudence  which  Christianity 
first  met  was  the  Roman.  Of  the  nature  of  this  law  before 
the  Advent,  J  shall  speak  in  another  chapter.  It  is  enough 
now  to  say  that  the  original  arbitrariness  had  already  be- 
gun to  yield  to  the  philosophical  ideas  borrowed  fi-om  the 
Greeks,  and  that,  before  the  effect  of  the  new  religion  was 
felt,  the  law,  through  the  labors  of  j)rffitors  and  jurists,  had 
advanced  to  a  high  position,  and  incorporated  into  its  prac- 
tical rules  many  of  the  principles  of  the  law  of  nature.  The 
jus  gentium  was  fast  displacing  the  old  lex  cwilis.  But 
even  the  philosophy  of  the  Greeks,  as  taught  by  Plato  or 
Aristotle,  did  not  recognize  many  rights  and  duties  which, 
derived  from  the  revelation  of  the  Divine  Will,  have  become 
familiar  to  us.  These  principles,  without  doubt,  have  been 
a  contribution  to  practical  jurisprudence  from  Christianity. 

§  320.  It  must  not  be  supposed  that  this  effect  among 
the  Romans  was  immediate.  The  progress  of  the  new 
religion  was  at  first  confined  to  the  common  people,  and 
slowly  reached  the  educated  and  influential  classes.  It  is 
true,  that,  during  the  earlier  ages  of  the  Christian  era,  some 
philosophical  and  judicial  writers,  attracted  by  the  pure 
morality  of  the  teachings  of  Christ  and  -his  ministers,  may 
have  borrowed  their  precepts  and  incorporated  them  into 
their  own  works.      M.  Troplong,  in   his  essay  Be  VIn- 


192  LEGAL   DEVELOPMENT. 

fiuence  du  Christianisme  sur  le  droit  civil  des  RomaMis,  is  of 
the  opinion  that  Seneca  shows  the  plain  effect  of  Christian 
doctrines.  Even  after  the  empire  became  converted,  the 
revolution  in  the  lav'  was  not  sudden.  Tlie  state  adopted 
the  religion,  but  the  people,  in  their  manners,  customs,  and 
habits  of  thought,  were  still  pagan.  The  church,  instead  of 
applying  herself  directly  to  mould  society  and  iiistitutions, 
was  yet  engaged  in  discussing  and  fixing  doctrines.  An 
opportunity,  however,  was  given  to  bring  the  maxims  of 
religion  home  to  the  private  affairs  and  business  of  the  peo- 
ple. Bishops  were  encouraged,  and  even  required  to  act 
as  arbiters  between  litigant  parties.  In  filling  this  ofiice, 
they  continually  deferred  to  the  principles  of  the  morality 
which  they  taught  as  clergymen.  Thus  they  were  able  to 
mitigate  the  condition  of  slaves,  to  soften  the  relation  of 
parent  and  child,  to  protect  minors  and  wards  under  the 
control  of  guardians  or  tutors,  and  generally  to  infuse  a 
spirit  of  charity  into  the  ordinary  affairs  and  transactions 
of  life.  From  the  time  of  Constantine,  except  during  the 
apostasy  of  Julian,  many  of  the  emperors  directly  interfered 
with  the  municipal  law,  and  by  their  constitutions  or  stat- 
utes, brought  portions  of  it  into  a  close  agreement  with 
Christian  morals.  The  branches  which  most  considerabl""^ 
felt  the  influence  of  these  ideas,  were  those  relating  to  mas- 
ters and  slaves,  to  parent  and  cliild,  to  husband  and  wife,  to 
marriage  and  divorce,  to  the  forme  and  technical  require- 
ments of  last  wills  and  testaments,  and  to  the  succession  to 
the  estates  of  deceased  persons. 

§  321.  When  the  "Western  Roman  Empire  was  oveiTun 
by  the  Teutonic  nations,  these  conquerors  soon  bowed  to 
the  religion  of  Christ.  In  their  pj-imitive  tribal  institutions, 
they  possessed  the  means  of  bringing  the  maxims  of  a  pure 
morality  to  bear  with  a  considerable  force  upon  the  untu- 
tored freemen.  It  has  already  been  shown  that  the  original 
folk  courts,  which  were  common  to  the  Saxons  in  England, 
the  Franks  in  Gaul,  and  the  other  invaders,  were  presided 


CHKISTIAN    IDEAS    AMONG   THE    SAXONS.  193 

over  by  a  lay  officer,  a  graff,  a  count,  or  an  ealdorman, 
associated  with  a  bishop.  Beyond  all  doubt,  during  this 
and  the  ages  immediately  following,  the  ecclesiastics  were 
the  best  educated  and  most  refined  class  in  the  European 
communities.  They  were  the  depositaries  of  the  learning 
of  the  times.  Although  the  presidency  of  the  freemen's 
courts  did  not  give  them  the  right  to  vote,  or  to  decide  dis- 
putes in  the  capacity  of  judges,  yet  the  official  position  and 
sacred  character  and  attainments  of  the  bishops  gave  them 
an  overpowering  influence  in  controlling  the  action  of  the 
assembled  freemen.  They  gave  instruction  in  the  law,  ex- 
plained the  rights  and  duties  of  the  parties,  and  in  so  doing, 
drew  largely  npon  the  inexhaustible  fountains  of  justice  and 
equity  contained  in  the  sacred  writings  and  teachings  of  the 
ehurch.  In  this  manner  the  English  law,  from  the  first, 
powerfully  felt  the  animating  influence  of  the  Christian 
religion.  An  impetus  was  imparted,  a  direction  given, 
which  have  never  been  lost.  To  this  primitive  origin,  we 
must  refer  the  fact,  stated  by  some  writers,  that  Christianity 
is  a  part  of  the  common  law  of  En?;land. 

§  322.  In  whatever  else  we  may  surpass  our  early  ances- 
tors, they  certainly  exceeded  us  in  depth  of  devotion  to 
religion ;  they  recognized,  acknowledged,  and  defeiTed  to 
the  overruling  hand  of  God,  with  a  more  cliildlike  faith. 
Perhaps  their  conceptions  of  true  ]  eligion  may  have  been 
somewhat  imperfect,  but  they  surely  acted  upon  these  con- 
ceptions in  the  every-day  concerns  of  life  ;  they  did  not  lift 
their  belief  up  out  of  the  daily  round  of  duties,  but  brought 
it  down  to  their  firesides,  their  inter(.;ourse  with  each  other, 
their  judicial  tribunals,  and  their  governments.  It  was  this 
Bimple  trust  upon  Providence  alone  which  originated  and 
continued  the  trials  by  ordeal,  and  by  wager,  of  battle.  "We 
may  talk,  in  this  day  of  unfaith,  about  the  juggleiy  of 
priests,  and  the  bloody  rudeness  of  our  ancestors,  but  we 
cannot  escape  the  truth,  that  tliey  regarded  these  customs 
as  legitimate  means  of  appeal  to  God  to  interpose  and  de- 
13 


194  .  LEGAL   DEVELOPMENT. 

cide  a  dispute,  when  the  correct  solution  could  not  be 
reached  by  any  evidence  within  their  power  to  use.  So 
complete  was  this  public  deference  to  the  precepts  of  re- 
ligion, that  Alfred,  king  among  the  Saxons,  preceded  his 
code  by  a  formal  enactment  of  the  Ten  Commandments, 
and  some  portion  of  the  legislation  of  Moses,  and  declared 
these  to  be  a  part  of  the  laws  of  his  kingdom. 

§  323.  In  the  United  States,  and  in  the  separate  com- 
monwealths, we  have,  in  theory  at  least,  banished  all  this 
recognition  of  God  in  our  governmental  and  judicial  insti- 
tutions. Yet  some  remains  of  our  long  education,  lasting 
through  centuries  of  our  English  history,  are  still  preserved 
to  us,  in  the  oaths  administered  to  ^A'itnesses,  and  the  forms 
of  writs  or  judicial  orders  acknowledging  that  we  exist 
as  a  free  and  independent  people  by  the  grace  of  God.  I 
may  be  permitted  here  to  express  a  fervent  hoi)e,  that,  as  a 
people  we  are  certainly  Christian,  so  as  a  nation  we  may 
soon  throw  off  our  character  of  infidelity. 

§  324.  The  description  given  in  tliis  and  the  preceding 
chapters,  of  the  law  of  definite  enactment,  and  the  law  of 
judicial  decision,  of  their  respective  origins,  methods  of 
development,  and  essential  characteristics,  will  enable  us  to 
form  a  correct  estimate  of  their  comparative  excellence,  and 
adaptation  to  the  uses  of  an  organized  society  in  forming 
its  municipal  law. 

The  two  propositions  wliich  I  believe  to  be  clearly  de- 
ducible  from  this  examination  are :  First,  That  a  national 
jurie^prudence,  which  is  the  product  of  judicial  decision,  is 
better  fitted  to  the  wants  of  a  free  and  enlightened  people 
than  one  embodied  entirely  in  statutes ;  and,  Second,  That 
such  a  form  of  the  municii^al  law  is  absolutely  inseparable 
from  a  state  progressing  in  civilization,  and  will  appear, 
notwithstanding  all  attempts  to  subvert  it  and  substitute  a 
legislative  code  in  its  stead. 

§  325.  These  two  propositions  do  not  depend  upon  each 
other ;   much  less  is  one  a  corollary  of  the  other.     The 


THE   UNWRITTEN   LAW   AND    STATUTES   COMPARED.        195 

former  can  only  be  maintained  bv  weighing  the  advantages 
and  disadvantages  inlierent  in  the  two  systems ;  the  latter 
rests  more  npon  a  historical  basis,  and  upon  those  necessary 
laws  which  govern  the  development  of  society.  Legisla- 
tures may  deny  the  first  proposition,  and  decide  that  the 
statute  is  preferable,  and  extend  it  so  as  to  embrace  all  the 
existing  rules  of  civil  conduct  at  a  given  time,  but  they 
cannot,  by  any  force  of  authority  annul  the  fact  contained 
in  the  second  ;  it  will  still  press  upon  them,  and  introduce 
an  element  of  unwritten  or  common  law  upon  their  solid 
foundations  of  enactment.  I  will  then  illustrate  these  two 
principles  separately. 

§  326.  What  are  the  chief  excellences  and  demerits  of 
the  law  of  judicial  decision,  and  of  the  law  of  enactment  ? 
If  the  former  be  preferable,  its  advantages  must  exceed  and 
its  faults  be  less  than  those  of  the  other.  "What  is  required 
in  any  form  of  national  jurisprudence  that  it  may  best  ac- 
complish its  design  of  prescribing  the  methods  by  which 
the  state  exerts  its  governing  action  ?  First,  that  the  sev- 
eral rules  should  be  clear,  precise  and  certain,  so  that  the 
citizen,  as  far  as  the  nature  of  the  subject  will  admit,  may 
understand  them,  and  be  instructed  in  his  duty  ;  Secondly, 
that  these  rules  should  be  comprehensive,  so  that  they  may 
embrace  not  only  transactions  and  relations  already  known, 
investigated,  and  in  terms  provided  for,  but  all  others  which 
may  naturally  arise  in  the  progi'ess  of  society ;  Thirdly,  that 
these  rules,  however  stringent  they  may  be,  should  not  for- 
ever remain  fixed  and  immovable,  the  same  through  all 
time,  but  should  possess  in  themselves  the  inherent  power 
of  adaj)tation  to  the  wants  of  a  progressive  people,  being 
able  to  withdraw  from  the  forms  of  the  past,  and  fit  them- 
selves to  the  life  of  the  present ;  Fourthly,  that  these  rules 
as  they  exist  at  any  given  time,  should  be  flexible,  contain- 
mg  provision  for  exceptions  to  their  general  requirements, 
BO  that  when  a  case  does  not  fall  within  the  reason,  although 
it  may  within  the  letter  of  a  regulation,  it  shall  not  be  con- 


196  LEGAL   DEVELOPMENT. 

trolled  by  it  contrary  to  justice  and  equity  ;  Fiftlily,  tliat 
these  rules  shoiild  not  be  arbitrary  and  disconnected,  but 
should  be  united  together  by  general  principles  into  one 
complete  system,  with  parts  mutually  dependent  and  sus- 
taining. I  think  that  it  will  be  readily  conceded  that  a 
perfect  municipal  law  should  at  least  possess  all  of  these 
qualities,  and  to  establish  my  first  proposition,  it  must  be 
shown  that  they  are  found  in  the  unwritten  law  to  a  greater 
degree  than  in  the  statute,  or  that  the  latter  is  entirely  defi- 
cient in  some  of  them,  although  it  may  share  others  in  com- 
mon with  its  rival  system. 

§  327.  It  is  genei'ally  claimed  for  the  law  cast  into  the 
mould  of  statutes  or  general  codes,  that  its  provisions  are 
more  certain,  precise,  and  definite  than  those  of  the  law  of 
judicial  decision,  and  that  from  it,  therefore,  the  citizen  can 
best  learn  the  obligations  which  the  state  has  placed  upon 
him,  and  prepare  to  perform  them.  The  argument  of  the 
advocates  of  codes  rests  almost  entirely  upon  this  premise. 
"While  I  am  not  prepared  to  admit  its  truth  to  the  full 
extent,  I  must  concede,  that,  in  respect  to  the  element  of 
precision  aud  certainty,  the  statute  law  has,  or  can  have, 
the  superiority,  and  were  this  the  only  attribute  of  a  perfect 
jurisprudence,  or  did  the  statute  possess  the  others  in  a  de- 
gree equal  to  the  law  built  up  by  judicial  decision,  it  is  plain 
that  the  best  interests  of  all  peoples  would  require  tliat  their 
entire  jurisprudence  should  be  transformed  into  codes. 

§  328.  In  some  portions  of  a  municipal  law,  certainty 
and  precision  are  of  tlie  highest  importance  ;  all  other  qual- 
ities should  be  sacrificed  to  this  ;  the  separate  rules  should 
be  clearly  aud  sharply  defined  ;  no  room  should  be  left  for 
doubt  as  to  the  duties  of  the  citizen.  Chief  among  these 
departments  is  that  which  defines  crimes,  and  apportions 
their  punishments.  The  criminal  law  so  immediately  aft'ects 
the  welfare  of  the  citizen,  reaching  to  his  life  and  liberty, 
that  all  its  provisions  should  be  made  in  the  highest  degree 
simple  and  plain  and  certain.     There  should  be  no  occasion 


THE  ELEMENT  OF  CERTAINTY.  197 

or  opportunity  given  for  judicial  construction,  for  inference, 
or  for  progress.  The  state  should  be  able  to  say  to  the 
criminal,  The  rule  you  have  broken  was  fully  declared  to 
you,  and  fully  comprehended  by  you,  the  exact  punish- 
ment was  threatened,  and  in  the  face  of  these  warnings  you 
have  violated  your  duty,  and  must  suflfer  the  penalty. 
Therefore,  both  the  interests  of  the  state  as  a  governing 
body,  and  of  the  people  as  the  governed,  require  that  the 
criminal  law  should  be  reduced  to  positive  enactments  by 
the  legislature.  The  statute  affords  the  best  means  of  con- 
veying to  the  people  the  organic  will  in  reference  to  this 
class  of  subjects.  Hence,  in  most,  if  not  all  of  the  Amer- 
ican States,  as  well  as  in  the  legislation  of  the  Federal  Gov- 
ernment, tlie  criminal  law  has  been  entirely  reduced  to  a 
statute  form.  In  most  of  the  European  countries  the  same 
is  true.  In  England  the  penal  as  well  as  the  private  law 
was  originally  a  part  of  the  unwritten  jurisprudence  ;  it  had 
grown  up  in  a  great  measure  from  judicial  decision.  But 
the  consequences  were  felt  to  be  disastrous,  and  of  late 
years,  much,  if  not  most  of  it,  has  been  remodelled  by  par- 
liamentary action.  Some  portions  of  political  law,  which 
require  certainty  in  preference  to  other  qualities,  are  also 
better  expressed  by  statutes  ;  but,  as  I  shall  attempt  to  show 
in  the  sequel,  this  does  not  apply  to  the  fundamental  organic 
law,  or  constitution  of  a  nation. 

§  329.  But  the  claim  that  the  statute  law,  even  when 
systematized  and  reduced  to  a  comprehensive  national  code, 
possesses  the  advantage  in  the  certainty  of  its  provisions, 
should  not  be  admitted  to  the  full  extent  claimed  by  its 
advocates.  The  law  as  decided  by  the  courts  is  written,  as 
well  as  that  enacted  by  legislatures.  It  is  possible,  nay,  it 
generally  happens,  that  the  particular  rule  wrought  out, 
and  definitively  announced  by  the  judges  who  compose  the 
tribunal,  is  as  precise  and  certain  and  authoritative  in  its 
terms  as  the  one  which  has  been  contrived  and  published 
by  the  individuals  who  compose  a  legislature. 


198  LEGAL   DEVELOPMENT. 

§  330.  The  uncertainty,  then,  which  is  said  to  belong  to 
the  law  of  judicial  decision,  does  not  reside  in  any  difficulty 
of  understanding  the  meaning  of  its  already  known  and  set- 
tled conclusions  ;  it  consists  entirely  in  the  impossibility  of 
always  being  able  to  anticipate  with  correctness  what  will 
be  the  rule  deduced  and  applied  by  the  coui-ts  to  relations 
not  embraced  by  any  former  decision  or  precedent ;  the 
same  species  of  uncertainty  which  belongs  to  the  results  of 
every  description  of  moral  reasoning.  The  judges  have, 
through  the  course  of  centuries,  brought  forth  into  the  form 
of  positive  legislation,  a  vast  number  of  particular  maxims 
and  regulations,  all,  however,  as  inferences,  argiunentatively 
drawn  from  a  comparatively  few^  general  principles.  These 
have  all  the  attributes  of  certainty  and  precision  which 
belono-  to  statutes  and  codes.  But  as  this  unwritten  or 
common  law,  in  its  essence,  is  not  so  much  a  complete,  fin- 
ished system,  as  a  power,  a  life  contained  in  ever-germinant 
principles,  developing  through  the  judicial  action  of  courts, 
the  judges  are  constantly  called  upon  to  do  what  the  statute 
cannot,  to  bring  forth  new  rules  from  the  old  premises,  and 
apply  them  to  the  ever-changing  circumstances  of  society. 
In  this  very  characteristic  of  the  law  of  judicial  decision, 
which  gives  it  so  decided  a  supeiiority  over  the  other,  is 
involved  its  only  uncertainty,  in  comparison  with  the  rules 
of  definite  enactment.  Tlie  common  law  then,  is  uncertain, 
simply  in  respect  to  that  power  which  it  possesses,  above 
and  beyond  the  statute,  and  the  latter  attains  its  peculiar 
merit  of  certainty  at  the  expense  of  a  higher  and  more 
important  attribute. 

■  §  331.  So  far  as  the  law  of  judicial  decision  has  been 
expressed  in  writing,  it  shares  with  the  statute  the  same 
qualities  of  certainty  and  uncertainty.  Both  partake  of  the 
imperfections  which  accompany  the  clothing  of  thought  in 
language.  Language  at  best  often  fails  to  convey  the  true 
idea  of  the  speaker  or  writer,  and  a^s  judges  and  legislatore 
alike  may  be  unskilful  in  the  use  of  this  instrument,  so  their 


THE  ELEMENT  OF  CEETAINTT.  199 

liandiM'ork  may  easily  lack  tlie  requisites  of  precision  and 
clearness. 

§  332,  While  botli  systems  of  positive  law  are  thus  liable 
to  fail  in  imparting  to  the  citizen  a  complete  understanding 
of  his  duties,  there  are  some  reasons  why  the  statute  may 
be  more  obnoxious  to  this  fault  than  the  judicial  decision. 
As  the  rules  established  by  courts  are  never  arbitrary,  but 
are  inferences  from  more  general  propositions,  or  analogies 
drawn  from  kindred  subjects,  the  interpretation  of  the  lan- 
guage in  which  these  rules  have  been  clothed  is  always 
aided  by  reasons  drawn  from  the  original  principles  and 
applied  to  the  doubtful  statement.  Tliis  method  of  the 
growth  of  the  unwritten  law  makes  it  self  interpreting ;  the 
very  steps  which  are  taken  to  reach  a  decision  and  announce 
the  law,  afford  an  explanation  of  this  conclusion.  But  with 
the  statute  law,  or  much  of  it  at  least,  this  advantage  does 
not  exist.  Its  provisions  are  seldom  based  upon  any  natural 
premises  found  either  in  institutions,  or  the  maxims  of 
equity  ;  they  cannot  be  inferred  by  pure  reasoning ;  they 
are  rather  contrived  from  motives  of  expediency,  and  are 
indeed  often  entirely  arbitrary.  The  intei-pretation  of  the 
legislative  enactments  can  seldom,  then,  be  aided  by  a  resort 
to  general  principles,  and  in  our  search  for  the  meaning,  we 
are  generalh^  thrown  back  upon  the  mere  language,  which 
is  the  channel  of  communication  for  the  thought.  This  fact 
has  made  the  interpretation  of  statutes  a  matter  of  constant 
difficulty,  and  has  given  to  the  courts  a  large  part  of  their 
judicial  labors.  Many  instances  might  be  given  to  illus- 
trate this  statement ;  but  indeed  they  are  of  every-day 
occuirence.  Hardly  a  statute  is  passed,  of  which  the  im- 
portant provisions  must  not  be  discussed,  construed,  and 
settled  by  the  judiciary.  In  the  reign  of  Charles  II,  a  stat- 
ute was  enacted  by  the  English  parliament,  designed  to 
diminish  opportunities  for  fraud,  by  making  it  necessary 
that  certain  specified  agreements  should  be  reduced  to 
writing  in  order  to  be  binding  upon  the  parties.    The  act"  is 


200  LEGAL   DEVELOPMENT. 

short  and  apparently  plain,  yet  thousands  of  decisions  have 
been  required  to  ascertain  its  meaning.  In  the  State  of 
New  York  an  endeavor  was  made  to  define  the  crime  of 
murder  by  the  revised  statutes,  so  that  no  question  could 
arise  as  to  the  circumstances  which  would  constitute  it. 
Yet  with  all  this  attempt  at  a  careful  and  exhaustive  defini- 
tion, the  courts  have  been  compelled  to  intervene,  and  ex- 
j)lain  the  language  used  by  the  legislature.  The  Federal 
courts  have  been  largely  occupied  in  giving  a  construction 
to  the  Constitution  of  the  United  States,  and  will  continue 
to  do  so,  as  long  as  the  nation  shall  exist.  In  fact  the  legal 
history  of  America,  of  England,  and  of  France  demonstrates 
that  judicial  legislation  has  been  constantly  invoked  to 
interpret  the  provisions  of  single  statutes  and  general  codes, 
and  the  product  of  this  labor  is  incorporated  with  the  writ- 
ten law,  as  explanatory  of  its  terms,  and  thus  an  unwritten 
law  invariably  grows  up  on  the  foundation  of  the  legislative 
enactment.  I  admit  that  when  the  whole  national  jurispru- 
dence is  collected  into  a  general  code,  the  difficulty  of  un- 
derstanding the  meaning  of  particular  rules,  is  not  so 
strongly  felt,  as  when  the  statutes  are  passed  singly  and  at 
intervals  ;  for  a  code  at  all  scientific  is  necessarily  grouped 
about,  and  built  upon  some  central  principles,  so  that  the 
individual  i")rovisions  are,  to  a  certain  degree,  reasonably 
inferred  from  these  general  premises  ;  the  code  has  more 
order,  method,  symmetry,  unity  of  design,  and  complete- 
ness, so  that  one  part  serves  to  explain  another.  But  yet 
there  remains  in  codes,  as  well  as  in  single  statutes  and 
judicial  decisions,  the  element  of  uncertainty  which  must 
result  from  the  employment  of  so  imperfect  an  instrument 
as  language  to  convey  to  the  citizens  the  organic  will  of  the 
state. 

§  333.  The  conclusion  is,  that  whatever  superiority  stat- 
utes or  codes  may  have  over  the  law  of  judicial  decision  in 
respect  to  the  attribute  of  precision  and  certainty,  they 
enjoy  simply  because  they  lack  a  power  of  exjjaivsion  pos- 


THE   ELEMENT   OF   COMPREHENSIVENESS.  201 

eessed  hj  the  other,  which  is  itself  one  of  the  essential  fea- 
tures of  a  perfect  national  jurisprudence. 

§  334.  The  second  requisite  of  a  perfect  municipal  law 
is,  that  its  rules  should  be  comprehensive,  so  that  they  may 
include  not  only  transactions  and  relations  already  known, 
investigated  and  provided  for,  but  all  others  also  which 
may  naturally  arise  in  the  progress  of  society. 

Statutes,  and  particularly  general  codes,  are  entirely 
wanting  in  this  attribute,  and  it  is  a  want  of  such  magni- 
tude, that  among  any  progressive  people,  the  courts  must 
be  called  in  to  supply  the  deficiency,  by  a  sequel  of  judicial 
legislation,  engrafted  upon  that  of  the  parliament.  The 
code  may  be  perfect  as  far  as  it  goes  ;  it  may  be  sufiicient 
for  all  the  needs  of  society  at  the  time  it  was  passed  ;  but  it 
cannot,  in  its  own  specific  rules,  anticipate  and  provide  for 
the  thousand  new  demands  of  a  people,  among  whom  ideas 
are  still  working.  With  such  a  people,  each  year  sees  some 
progress  ;  what  is  adapted  to  one  generation  becomes  obso- 
lete and  useless  for  the  next.  The  code  then  gradually 
loses  its  application  to  the  circumstances  of  the  nation,  or 
perhaps  it  may  retard  the  onward  march,  and  thus  become 
a  hindrance,  instead  of  a  help,  to  a  more  perfect  civilization. 

§  335.  But  the  law  of  judicial  decision  enjoys  this  im- 
portant attribute  in  the  highest  degree ;  indeed  it  is  its 
essential  characteristic,  differencing  it  from  the  law  of  defi- 
nite enactment.  This  form  of  a  municipal  law,  naturally 
and  inevitably,  by  its  own  inherent  method  of  development, 
keeps  step  with  the  national  progress  ;  its  positive  rules  of 
to-day  are  just  such  as  the  private  and  public  relations  of 
the  citizens  demand  ;  to-morrow,  some  of  these  relations 
will  have  been  exchanged  for  others,  but  the  law  will  make 
a  corresponding  movement  in  advance,  to  meet  this  move- 
ment of  society.  1  need  not  repeat  the  description,  already 
given,  of  the  method  and  spirit  of  this  continuous  gi'owth. 
What  has  been  said,  in  the  preceding  part  of  this  chapter, 
of  the  characteristics  of  thi  two  forms  of  a  municipal  law, 


202  LEGAL   DEVELOPMENT. 

in  respect  to  their  origin  and  development,  is  enough  to 
show  that  single  statutes  and  complete  codes  can  only  be 
comprehensive  and  perfect  for  the  stage  of  society  in  which 
they  were  called  into  existence  as  collections  of  positive 
rules,  while  the  law  of  judicial  decision  has  an  inherent 
power  of  expansion,  unlimited  except  by  the  national  life 
of  the  people,  of  whose  civilization  it  is  the  product  and 
exponent. 

§  336.  Tlie  third  requisite  of  a  perfect  municipal  law  is, 
that  its  mles,  however  stringent  they  may  be,  should  not 
remain  forever  fixed,  the  same  through  all  time,  but  that 
they  should  have  in  themselves  a  capacity  for  adaptation  to 
the  varying  wants  of  a  progressive  society,  being  able  to 
loose  their  hold  upon  the  forms  of  the  past,  and  fit  them- 
selves to  the  life  of  the  present. 

The  discussion  in  the  former  portion  of  this  chapter  has 
demonstrated  that  the  statutes  and  codes  cannot  possess  this 
function.  As  they  were  created,  they  must  stand,  no  mat- 
ter what  revolutions  the  state  may  have  experienced,  until 
the  legislature,  who  gave  them  birth,  shall  interpose  to 
repeal,  amend,  or  add  to  their  provisions.  They  may  in- 
deed be  changed,  but  not  by  any  force  residing  in  and 
formhig  a  part  of  their  essential  being ;  a  foreign  power 
must  be  invoked,  and  this  very  necessity,  as  we  have  seen, 
invariably  prevents  the  emendations  and  alterations  from 
flowing  naturally  out  from  the  old  matters,  and  causes  sud- 
den breaks  and  displacements  in  the  difi'erent  parts.  Now 
the  development  of  an  organic  society  is  always  continu- 
ous, sometimes  indeed  rapid,  and  sometimes  slow,  but  the 
present  is  never  entirely  cut  oflP  from  the  past,  but  issues 
from  it  by  natural  and  necessary  laws.  A  statutory  code, 
amended  from  time  to  time,  can  never  exactly  represent 
the  state  of  the  national  civilization. 

§  337.  On  the  other  hand,  the  unwritten  law,  as  has 
been  shown  in  this  chapter,  by  its  very  process  of  becoming 
law,  is  continually  rejecting  what  has  been  ovtgrown,  and 


V 


THE   ELEMENT   OF   FLEXIBILITT.  203 

stating  new  rules  to  apply  to  the  relations  which  are  con- 
stantly arising.  It  j)ushes  out  its  adyances  in  every  direc- 
tion ;  if  the  enterprise  of  any  portion  of  the  citizens  has 
opened  new  channels  of  trade  and  business,  it  anticipates 
the  legislature,  and  is  immediately  at  hand  to  define  and 
establish  the  new  rights  and  duties  which  may  spring  from 
the  untried  field  of  activity.  It  cannot  be  denied  that  this 
power  of  the  law  of  judicial  decision  is  one  of  great  impor- 
tance, and  that  it  gives  the  system  a  decided  supeiiority 
over  the  other,  as  a  practical  instrument  for  adjusting  the 
private  relations  of  the  people  of  a  state. 

;  338.  The  fourth  requisite  of  a  perfect  municipal  law, 
is,  that  its  rules  as  they  exist  at  any  given  time,  should  be 
flexible,  and  should  embrace  the  power  of  admitting  excep- 
tions to  their  general  requirements,  so  that  when  a  case 
does  not  fall  within  the  reason,  although  it  may  within  the 
letter  of  a  regulation,  it  shall  not  be  controlled  by  it,  con- 
trary to  right  and  equity. 

Every  national  jurisprudence  should  aim  at  promoting 
justice ;  the  nearer  it  approaches  to  the  teachings  of  con- 
science and  the  morality  of  Christianity,  the  nearer  it  is  to 
an  ideal  legislation.  The  contrast  between  the  statutory 
code,  and  the  free  law  of  judicial  decision  in  this  faculty 
of  doing  right  by  adaptation  to  different  circumstances,  is 
striking,  and  exhibits  in  a  clear  light  the  superiority  of  the 
latter  system.  The  one  is  rigid  and  inflexible  in  its  rules  ; 
they  may  be  repealed  by  legislatures,  but  while  they  last, 
they  admit  of  no  exceptions.  The  very  nature  of  a  statute, 
as  the  expression  of  the  supreme  will  of  the  state,  allows  of 
no  interference  with  its  provisions  by  the  courts,  or  other 
departments  of  the  government.  It  may  require  judicial 
construction  to  arrive  at  the  meaning  of  particular  enact- 
ments, but  this  once  ascertained,  they  must  be  implicitly 
followed.  Were  the  judges  permitted  to  bend  the  statutory 
rules  to  meet  the  exigencies  of  individual  cases,  and  thus  pro- 
mote substantial  justice,  their  essential  character  would  be 


204  LEGAL   DEVELOPMENT. 

lost ;  they  would  become  part  and  parcel  of  the  unwritten 
law. 

§  339.  The  law  of  judicial  decision,  on  the  contrary,  is, 
from  the  very  nature  of  its  creation  and  development,  flex- 
ible and  free.  ISTot  enacted  in  bulk,  but  built  up  by  gradual 
accretions,  as  single  cases  arise  to  call  out  its  expressions, 
the  circamstances  of  these  cases  enter  largely  as  a  control- 
ling element,  in  determining  what  the  new  statement  of 
positive  rules  shall  be.  We  have  alreadj'  seen  how,  in  the 
progress  from  rude  beginnings  toward  scientific  amplitude, 
the  principles  of  equity  have  constantly  entered  more  and 
more  into  it,  and  have  been  felt  in  producing  beneficial 
results  upon  the  general  prosperity  of  the  people. 

§  340.  An  instance  will  serve  to  illustrate  the  workings 
of  the  two  systems.  The  legislatures  of  England  and  most 
of  the  American  States  have  passed  statutes  prescribing 
certain  formalities  as  necessary  to  the  proper  execution  and 
authentication  of  last  wills  and  testaments.  The  design  was 
to  prevent  fraudulent  and  perjured  claims,  set  up  by  false 
and  forged  wills,  and  so  far  was  good.  The  provisions  of 
these  statutes  are  somewhat  different ;  that  of  one  State 
ordains  that  the  will  shall  be  signed  by  the  testator,  and  be 
acknowledged  to  be  his  last  will  in  the  presence  of  two  wit- 
nesses, who  shall  in  his  presence  affix  their  names  to  the 
instrument.  A  case  might  arise,  and  indeed  has  arisen, 
where  the  will  was  made,  signed,  and  witnessed,  but  the 
testator  by  oversight  or  carelessness  or  ignorance,  acknowl- 
edged it  to  be  his  act  or  deed^  instead  of  last  will.  Here  the 
intention  of  the  deceased  was  evident :  he  endeavored  to 
fulfil  the  requirements  of  the  statute,  and  the  plainest  equity 
urges  that  the  disposition  of  his  propeily  should  be  earned 
out.  The  law  of  judicial  decision,  untrammelled  by  legisla- 
tive authority,  would  have  regarded  this  intention,  and 
pronounced  the  will  valid,  but  the  statute  having  once 
marked  out  the  course  to  be  pursued,  can  suffer  no  devia- 


THE   p:LKArENT   OF   UNITY.  205 

tioD,  and  deilares  that  the  testator  has  failed  in  his  attempt 
to  transmit  his  property  according  to  his  wishes. 

§  341.  This  essential  distinction  between  the  statute  and 
the  unwritten  law,  can  never  he  removed  without  merging 
the  one  in  the  other.  If  a  code  should  declare  that  its  spe- 
cial rules  were  to  be  construed  according  to  equity,  that 
they  were  to  yield  to  the  requirements  of  justice,  and  should 
leave  to  the  courts  the  power  of  determining  the  occasions 
when  the  general  principles  of  right  should  override  the 
particular  provisions  of  the  statute,  its  peculiar  character 
would  be  gone  ;  in  the  hands  of  the  judges  it  would  be  sim- 
ply a  systematic  declaration  of  the  ascertained  results  of 
judicial  decision. 

§  342.  The  final  requisite  of  a  perfect  municipal  law 
which  I  have  given,  is,  that  its  rules  should  not  be  arbitrary 
and  disconnected,  but  should  be  united  together  by  general 
principles  into  one  complete  system,  with  parts  mutually 
dependent  and  supporting. 

I  have  already  shown  that  this  attribute  is  found  in  a 
high  degree  in  the  law  of  judicial  decision,  and  that  it  does 
not  exist  in  separate  and  fragmentary  statutes,  such  as  are 
common  in  England  and  most  of  the  United  States.  But 
when  the  national  jurisprudence  is  embodied  in  a  general 
code,  it  can  share  with  the  unwritten  law  the  merit  of  de- 
pendence upon  general  principles,  and  of  unity  and  homo- 
geneity ;  its  departments  may  be  related  to  each  other,  and 
a  common  spirit  may  pervade  it.  Indeed,  so  far  as  the  out- 
ward formal  expression  of  legal  rules  affects  the  character 
of  a  system,  a  general  code  enjoys  advantages  over  the  un- 
written law,  in  the  classification  and  arrangement  of  its 
subjects,  and  the  symmetry  of  the  whole  plan. 

§  343.  From  this  comparison,  I  think  it  sufficiently  ap- 
pears, that  a  national  jurisprudence,  which  is  the  product 
of  judicial  decision,  is  better  fitted  to  the  wants  of  a  free, 
enlightened,  and  progressive  people,  than  one  consisting 
entirely  of  statutes. 


206  LEGAL    DEVELOPMENT. 

§  344.  The  second  proposition  wliicli  I  maintain  is,  that 
a  municipal  law,  in  whole  or  in  part  the  product  of  judicial 
decision,  gradually  constructed  and  developed  bj  courts,  is 
absolutely  inseparable  from  a  state  progressing  in  civiliza- 
tion, and  will  appear,  notwithstanding  all  attempts  to  sub- 
vert it,  and  substitute  a  legislative  code  in  its  stead.  The 
truth  of  this  statement  will  appear  probable  from  much  of 
the  preceding  discussion.  A  nation  full  of  vitality,  pros 
perous,  expanding,  with  vigorous  race  forces  animating  the 
people,  will  not  remain  content  with  an  infenor  form  of 
legislation.  As  the  law  touches  so  closely  each  man's  pri- 
vate relations,  and  in  its  broadest  view,  so  plainly  expresses 
the  national  civilization,  it  must  assume  such  a  fomi,  that  it 
may  accompany  and  aid  the  march  of  that  civilization.  If, 
then,  it  be  tj-ue,  that  codes  cannot  do  more  than  embody 
the  ideas  of  the  age  in  which  they  were  created,  and  have 
not  the  capacity  to  yield  to  the  irresistible  pressure  of  the 
national  force,  and  accommodate  themselves  to  the  people's 
growth,  that  force  and  growth  must  break  over  the  barrier, 
and  extend  themselves  beyond  the  restricted  limits  of  the 
statute ;  they  must  find  a  way  of  making  themselves  felt 
through  the  comts ;  they  must  create  new  law  by  the  judi- 
ciary. These  are  necessary  consequences  of  national  prog- 
ress. History  corroborates  this  antecedent  theory,  and 
shows  that  such  has  been  the  course  of  legislation  in  all 
states  where  free  ideas  have  had  outward  expression  among 
the  whole,  or  any  large  portion  of  the  citizens. 

§  345.  At  the  commencement  of  the  development,  when 
the  nation  has  just  awoke  to  the  conception  of  a  separate 
organic  existence,  and  seems  to  be  pausing  before  it  takes 
up  its  onward  march,  codes  have  been  common.  Before 
their  appearance,  the  law,  if  such  it  may  be  called,  con- 
sisted in  a  few  tribal  and  neighborhood  customs,  which, 
however,  were  the  seeds  of  a  vast  future  growth.  These  are 
finally  found  to  be  too  meagre  and  weak  for  the  national 
wants,  and  are  collected  into  a  precise  statutory  form,  the 


THE   UNWKTTTETvr   I,AW    /!l   NECESSARY   FORM.  207 

l>asis  of  wliich  are  the  old  familiar  rules,  which  have  served 
thus  far  to  govern  society,  with  such  additions  and  improve- 
ments as  could  be  invented,  or  borrowed  from  the  legisla- 
tion of  other  states.  Thus  the  Roman  jurispnidence  took 
its  initiative  with  the  code  of  the  XII.  Tables,  compiled 
from  the  preexisting  customary  law.  The  Franks  imme- 
diately before,  or  shortly  after  their  successful  invasions  of 
Gaul,  promulgated  the  codes  known  as  the  Salic  and  the 
Ripuarian  laws.  Aethilbirht,  king  of  the  Kentish  people, 
about  the  year  600,  published  the  oldest  collection  of  laws 
among  the  Anglo-Saxons,  which  was  followed  by  many 
other  from  the  kings  of  the  Saxon  and  the  Danish  dynas- 
ties. The  general  character  of  all  these  compilations  was 
the  same.  They  were  meagre,  and  left  much  to  be  supplied 
by  the  customary  laws  of  the  people.  The  Roman  XII. 
Tables  appear  to  have  embraced  the  greatest  number  of 
important  topics,  including,  among  others,  rules  relating  to 
husband  and  wife,  parent  and  child,  to  property  and  many 
of  the  contracts  respecting  it,  to  inheritances,  to  the  rites  of 
religion,  to  judicial  proceedings,  and  to  the  political  institu- 
tions of  the  state.  The  Saxon  and  Frankish  codes  were 
chiefly  occupied  with  the  allotment  of  specific  punishments 
to  different  acts  of  violence  upon  persons  and  property. 

§  346.  When,  leaving  this  starting  point,  we  follow  along 
the  course  of  legal  and  national  history,  we  find  the  same 
facts  appearing  in  the  Roman  republic  and  empire  and  in 
England,  and,  though  perhaps  to  a  degree  less  marked,  in 
the  continental  states  of  Europe.  I  have  already  sketched 
the  process  of  development  of  legal  ideas,  forms,  maxims, 
and  rules,  through  the  action  of  the  Roman  prsetors  and 
jurists,  and  of  the  English  courts,  and  it  is  unnecessary 
again  to  recur  to  the  subject.  We  have  seen  that  as  the 
state  advanced  in  civilization  and  material  resources,  the 
same  wants  were  felt  by  these  jjeoples  so  widely  difierent  in 
the  character  of  their  national  life  ;  that  the  rude  primitive 
codes  were  outgrown ;  that  the  people  demanded  a  legis- 


'20S  LEGAL    DEVELOPMENT. 

lation  commeusurate  with  their  activity,  and  that  this  de- 
mand was  naturallv  responded  to  by  the  courts.  A  con- 
trolling reason  why  this  course  of  events  in  the  life  of  a 
nation  is  more  apparent  in  the  Roman  republic  and  empire 
and  in  England,  tlian  in  the  continental  states  of  modern 
Europe,  may  be  found  in  the  fact,  that  in  these  two  coun- 
tries more  than  in  any  others,  have  the  judicial  departments 
been  kept  separate  and  independent  of  the  executive  and 
legislative,  whether  these  latter  were  senate  or  parliament, 
king  or  emperor.  In  France,  after  the  rise  of  the  kingly 
power  upon  the  overthrow  of  the  feudal  princes,  the  crown 
became  not  only  the  theoretical  but  the  actual  source  of  the 
municipal  law  which  depended  upon  direct  legislation.  But 
there  was  also  a  common  law,  built  up  and  expounded  by 
the  courts,  which  were  scattered  through  the  departments 
into  which  the  kingdom  was  divided.  Tliese  courts,  how- 
ever, were  independent  of  each  other,  and,  in  the  process  of 
time,  each  became  the  centre  of  its  own  local  law,  so  that 
at  the  time  of  the  Kevolution  there  were  two  hundred  and 
fifty  separate  systems  of  jurisprudence  prevailing  through 
France.  This  result,  so  disastrous  to  the  prosperity  of  the 
people,  and  destructive  of  all  unity  and  scientific  complete- 
ness of  the  municipal  law,  was  not  the  natural  consequence 
of  the  creative  function  possessed  by  the  judges,  but  of  the 
peculiar  institutions  of  France,  which  provided  no  head, 
controlling  the  subordinate  tribunals,  and  bringing  their 
decisions  into  agreement  with  each  other. 

§  347.  In  Rome,  the  judicial  development  of  a  free, 
expansive,  common  law,  continued  through  the  republic, 
reached  its  culminating  point  during  the  earlier  portion  of 
the  empire,  began  to  decline  with  the  receding  civilization, 
and  finally  ceased,  when  the  progress  of  civilization  having 
stopped,  the  true  Roman  life  having  become  dead,  there  no 
longer  existed  any  need  for  the  constant  reproduction. 
Henceforth,  all  legislation  was  statutory.  In  such  a  con- 
dition of  the  nation,  a  collection  of  the  principles,  maxims. 


NATIONAL   CODES   NOT   ORIGINAL.  209 

and  rales  of  law,  which  lay  scattered  along  the  centuries 
marking  the  line  of  the  glorious  progress,  into  one  conve- 
nient and  comprehensive  code,  was  in  the  highest  degree 
necessary.  Although  partial  compilations  had  been  made 
before,  Justinian  accomplished  the  work,  and  thereafter  the 
dead  Roman  people  created  no  more  law ;  what  has  since 
been  added  upon  this  basis,  has  been  the  product  of  other 
living  nations,  who,  succeeding  to  the  empire,  have  inher- 
ited the  labors  of  their  predecessors. 

§  348.  In  the  history  of  the  Roman  commonwealth,  we 
have  an  example  of  the  complete  life  and  natural  and  neces- 
sary progress  of  a  national  jurisprudence,  from  its  birth  to 
its  death.  In  England  and  its  transplanted  stock  in  Amer- 
ica, we  can  discern  the  same  progress,  but  as  yet  full  of  life, 
vigor,  and  growth.  But  attempts  have  been  made  in  mod- 
ern times,  in  countries  teeming  with  activity,  to  reverse  this 
apparent  law  of  historical  development,  and  give  a  perma- 
nent code  to  the  people,  which  should  contain  all  the  legis- 
lation needed  for  the  private  relations  of  the  citizens.  The 
French  codes,  promulgated  by  Napoleon  I.,  as  described  in 
Chapter  First,  of  this  Part,  were  the  first,  and  continue  to 
be  the  most  prominent,  example  of  this  endeavor. 

§  349.  Now  it  is  to  be  remarked  that  none  of  these  codes 
are  original  in  their  principles  or  details.  Like  those  of 
Justinian,  they  were  compiled  and  digested  from  former 
municipal  regulations  which  had  grown  up  in  the  state 
itself,  or  had  been  adopted  from  other  countries,  from  prin- 
ciples worked  out  through  a  progressive  state  of  jurispru- 
dence. Indeed,  it  is  impossible,  in  the  natural  course  of 
legislation,  without  the  force  exerted  by  a  conquering  nation 
upon  the  conquered,  to  originate  and  invent  a  code  entirely 
new,  and  impose  it  upon  a  people.  No  such  thing  has  ever 
been  done.  A  jurisprudence  must  be  the  product  of  the 
ideas  and  life  of  the  people  over  which  it  dominates;  it 
must  spring  from  the  soil.  Even  a  conquering  nation  can 
only  establish  their  own  laws  over  their  subjects,  by  extir 
14 


210  LEGAL  DEVELOPMENT. 

pating  all  the  elements  of  a  separate  national  existence. 
Foreign  regulations  and  institutions,  however  admirable 
they  may  be  in  themselves,  cannot  be  imported  and  success- 
fully incorporated  into  the  native  law,  unless  they  will 
assimilate  with  the  habits  of  thought  of  the  people,  with 
those  ideas,  which,  derived  from  the  primitive  stock,  seem 
to  be  a  part  of  their  very  being.  Thus  the  French  system 
of  the  marriage  relation,  with  its  divided  interests,  its  vir- 
tual partnership,  its  contribution  of  property  by  husband 
and  wife  to  the  common  stock,  its  careful  distinction  be- 
tween the  separate  ownership,  could  never  flourish  on  Eng- 
lish soil,  where  for  centuries  the  husband  and  wife  have  been 
merged  into  one,  and  the  indivisible  unity  of  the  family  has 
been  most  carefully  guarded.  The  inconsiderate  attempts 
recently  made  in  some  American  States  to  engraft  this 
French  idea  upon  our  English  stock,  have  not  been  accepted 
by  the  people.  The  statutes  have,  of  course,  given  a  rule 
to  the  courts,  but  the  people  have  gone  on,  and  will  con- 
tinue to  live  and  act  in  accordance  with  the  ideas  which 
they  have  inherited  from  their  race. 

§  350.  The  codes  of  France  are  made  up  in  part  of  the 
ancient  law  of  that  kingdom,  but  so  far  as  they  relate  to 
private  rights,  are  principally  founded  upon  the  jurispru- 
dence of  Rome,  which  had  long  been  the  substratum  of  the 
legislation  of  European  countries.  This  jurisprudence  has 
indeed  been  recast  into  a  modern  form,  more  suited  to  the 
manners  and  life  of  the  present  age.  The  same  is  true  of 
the  civil  code  of  Louisiana.  \ 

§  351.  But  have  the  codes  of  France  and  of  Louisiana 
dispensed  with  the  necessity  of  a  judiciary,  possessing  the 
faculty  to  create  and  add  new  ^aw,  as  the  needs  of  a  pro- 
gressive society  demand  ?  By  ho  means.  The  necessary 
laws  of  national  progress  could  pot  be  confined  by  the 
severe  restraints  of  legislative  ena^t^tment.  These  general 
codes,  comprehensive  and  admu-ablcj  as  expressive  of  law 
already  known,  have  only   been   wBat   the   English   and 


■WEITTEN   AND   TRADITIONAL   CONSTITUTIONS.  211 

American  law  of  judicial  decision  would  be,  were  it,  so  far 
as  developed,  to  be  crystallized  into  a  concise  systematic 
form  of  short  and  definite  rules.  Were  this  to  be  done,  the 
past  would  remain  fixed,  but  a  power  would  yet  exist  in  the 
courts  to  go  on  adding  new  material  to  this  foundation.  It 
has  been  found  necessary  in  France  and  Louisiana,  that  the 
judiciary  should  take  up  the  legislative  function  where  the 
legislature  has  dropped  it ;  and  so  it  must  continue,  until 
these  states  shall  sink  into  a  condition  resembling  that  of 
the  decline  of  the  Roman  empire. 

§  352.  I  had  intended  to  close  this  chapter  with  a  care- 
ful comparison  between  a  fixed  written  national  constitu- 
tion, like  that  of  the  United  States,  and  one  free,  elastic, 
unwritten,  and  traditional,  like  that  of  Great  Britain,  but 
my  limits  forbid  anything  more  than  a  general  reference  to 
the  subject.  I  believe,  however,  that  the  panegyrics  which 
we  have  been  in  the  habit  of  bestowing  upon  our  organic 
law,  because  it  is  embodied  in  precise  statutory  forms,  are 
founded  in  a  vital  error.  I  believe  that  the  principles  of 
legislation  already  set  forth  in  this  chapter,  as  necessary  to 
a  vigorous,  progressive  state,  apply  with  equal  force,  to  the 
law  which  governs  the  private  relations  of  citizens,  and  that 
which  determines  the  acts  of  the  government  itself.  In 
fact,  as  the  interests  committed  to  the  state  in  its  organic 
capacity,  are  of  far  higher  consequence  than  those  controlled 
by  the  private  law,  it  is  even  more  important  that  the  con- 
stitution should  be  framed  in  accordance  with  the  universal 
experience  of  mankind,  and  the  true  theory  of  legislation. 
The  contrary  principle,  of  confining  the  government  by  a 
rigid  system  of  unalterable  rules,  has  been  carried  by  us  to 
an  extreme,  which  is  producing  its  natural  reaction  in  the 
frequent  changes  made  in  state  constitutions.  In  some  of 
the  American  commonwealths  the  organic  law  resembles, 
in  minuteness  of  detail,  rather  a  codification  of  statutes, 
than  a  statement  of  the  grand  leading  maxims  and  institu- 


212  LEGAL   DEVELOPMENT. 

tions  whicli  underlie  and  support  the  whole  mass  of  juris- 
prudence, and  the  whole  activity  of  the  state. 

§  353.  The  effect  of  this  form  of  constitution  may  be  felt 
in  those  sudden  crises  which  overtake  a  nation  and  shake  it 
to  the  centre,  and  in  the  peaceful  progress  of  the  people, 
developing  from  generation  to  generation  in  resources  and 
culture.  The  United  States  is  now  suffering  most  disas- 
trously the  inevitable  consequences  of  an  organic  law,  rigid 
and  inflexible  in  its  provisions,  without  power  of  adapta- 
tion to  a  radical  change  of  circumstances.  Formed  for  a 
condition  of  internal  peace,  and  ignoring  the  possibility  of 
a  civil  war,  its  unyielding  rules  are  paralysing  and  repress- 
ing the  national  energies.  Every  attempt  to  cope  with  the 
unforeseen  emergency  by  extraordinary  measures  is  met  by 
some  iron  barrier.  The  congress  and  the  executive  repre- 
senting the  body  politic,  are  indeed  not  so  effectually  re- 
sisted by  the  open  armed  enemies  of  the  country,  as  by  the 
very  form  of  the  organic  law,  which  now  appears  as  though 
contrived  to  destroy  the  force  of  a  people  laboring  to  main- 
tain their  existence.  Indeed,  it  is  evident  that  the  disunion 
itself  is  the  inevitable  result  of  this  constitution,  framed  for 
one  generation,  and  so  quickly  outgrown  by  the  progress  of 
ideas  in  another. 

§  354,  But,  independent  of  this  extraordinary  crisis,  our 
history,  short  as  it  is,  shows  that  it  has  been  necessary  for 
the  government  gradually  to  depart  from  the  written  consti- 
tution, as  it  was  understood  and  interpreted  at  the  time  of 
its  adoption.  Judicial  construction  has  added  new  matter 
to  its  concise  provisions,  and,  as  in  the  case  of  any  code,  a 
law  of  judicial  decision  has  grown  up,  which  furnishes  the 
practical  rules  which  guide  the  government.  This  work  of 
legislation  will  continue  as  long  as  the  nation  exists,  until 
the  written  constitution  shall  have  virtually  disapj)eared  in 
the  accumulation  of  unwritten  exposition,  as  the  Roman 
code  of  the  XII.  Tables,  in  the  time  of  Cicero,  had  sunk  into 
neglect,  amidst  the  growth  of  the  praetorian  jurisprudence. 


CONCLTTSION.  213 

§  355.  The  conclusion  to  which  I  arrive  from  the  discus- 
sions of  this  chapter  is,  that  while  a  nation  is  in  a  state  of 
advance,  a  free  system  of  law,  the  product  of  courts  is  abso- 
lutely necessary ;  that  when  codes  have  been  adopted  in 
such  countries,  they  are  not  final,  the  courts  must  proceed 
to  build  upon  them.  When  codes  alone  have  served  all  the 
purposes  of  a  national  legislation,  tlie  national  life  has  be- 
come effete. 


FART   ll. 

NATIONAL  SOURCES  OF  ENGLISH  AND  AMERICAN  LAW. 


CHAPTER  I. 

THE   ANGLO-SAXON   LAWS   AND   INSTITUTIONS. 

§  356.  In  the  preceding  cliapters  many  allusions  have 
been  made  to  the  tribal  customs  of  the  Teutonic  nations 
which  settled  down  upon  western  Europe,  and  in  them  we 
have  found  the  germs  of  some  of  our  most  important  insti- 
tutions. I  purpose  in  the  present  chapter  to  give  a  short 
and  general  outline  of  the  Anglo-Saxon  laws,  as  they  may 
be  collected  from  the  careful  and  exhaustive  investigations 
of  modem  writers.  It  cannot  be  denied  that  much  uncer- 
tainty exists  in  regard  to  this  subject ;  that  different  authors 
of  great  credit,  have  arrived  at  opposite  conclusions,  not 
only  in  regard  to  the  subordinate  and  minuter  details  of  the 
Saxon  social  organization,  but  even  in  respect  to  the  great 
institutions  which  underlay  it. 

§  357.  It  must  not  be  supposed  that  we  shall  find  any 
resemblance  between  the  actual  legislation  of  the  Saxons, 
and  our  own  private  laws.  They  ha^^e  given  to  us  poten- 
tialities, the  seeds,  rather  than  the  fruits,  or  even  a  growth 
begun.  Tliey  have  bequeathed  to  us  a  strong  and  vigorous 
race  life,  pervading  the  mass  of  sturdy  and  sensible  middling 
classes ;  the  instincts  of  personal  freedom ;  the  confident 


THE   CELTS    AND   ROMANS   IN   BRITAIN.  215 

self-reliance  ;  tlie  disposition  to  self-government.  We  shall 
find  these  tendencies,  which  characterize  the  English  and 
Americans  of  the  present  day,  evidently  at  work  at  the  very 
foundation  of  the  Anglo-Saxon  polity.  The  meagre  devel- 
opment of  these  principles  among  our  early  ancestors,  was 
suited  to  the  age  in  which  they  lived ;  their  form  with  us 
has  been  modified  by  the  complete  change  in  outward  cir- 
cumstances, but  the  essential  ideas  are  still  the  same. 

§  358.  "WTien  the  Romans  extended  their  conquests  into 
Gaul  and  Britain,  they  met  with  nations  of  fierce  barba- 
rians, having  a  general  resemblance  in  manners,  customs, 
and  languages.  These  different  tribes,  evidently  sprung 
from  the  same  stock,  belonging  to  the  same  ethnic  family, 
have  been  known  as  the  Celtic  people.  This  race  was  the 
first  of  those  great  waves  of  population  which  have  swept 
over  Europe  from  the  high  table  lands  of  central  Asia,  and 
broken  upon  the  shores  of  the  Atlantic.  Of  their  customs 
it  would  be  useless  to  enquire,  for  they  have  left  no  sensible 
impress  uj)on  the  civilization  of  Europe.  Although  a  few 
writers,  generally,  as  I  believe,  of  Celtic  descent,  have  at- 
tributed much  of  the  advance  of  modern  times  to  the  influ- 
ence of  this  people,  yet  it  does  not  seem,  from  a  careful 
survey  of  European  history,  that,  as  a  race,  they  possessed 
any  capacity  for  an  enlarged  civilization.  They  are  exceed- 
ingly tenacious  of  their  tribal  peculiarities,  as  may  be  wit- 
nessed among  the  Welsh  and  Irish,  but  as  a  people,  they 
yielded  to  the  superior  power  in  arms  of  the  Romans  and 
Teutons  ;  and  had  not  that  unconquerable  native  force 
which  would  enable  them  to  rise  through  and  above  their 
invaders,  pushing  up  their  own  institutions  side  by  side 
with  those  imposed  upon  them.  In  Gaul  and  Britain,  at  first 
subjugated  by  the  Romans,  they  became  the  lowest  stratum 
of  society,  under  the  fierce  domination  of  the  Germans. 

§  359.  Britain,  thus  peopled  by  Celts,  was  invaded  by 
the  Romans  under  Julius  Csesar.  After  a  long  series  of 
contests,  the  subjugation  was  completed  by  Agricola.     The 


216  THE    ANGL0-SAX0X8. 

Roman  civilization  was  introduced ;  towns  were  built  up 
and  organized  U230n  the  Koraan  plan ;  the  Roman  laws 
were  introduced  and  administered  by  Roman  tribunals,  and 
the  armies  of  the  empire  were  scattered  throughout  the 
country.  This  domination  continued  until  the  western  em- 
pire was  sinking  under  the  attacks  of  the  Germans,  and 
finally,  about  the  year  410  a.  d.,  the  legions  were  with- 
drawn, and  the  island  was  abandoned  to  its  original  pos- 
sessors. 

For  reasons  already  noticed,  and  given  more  fully  in  a 
subsequent  chapter,  it  is  not  probable  that  this  long  rule  of 
the  Romans  has  produced  any  substantial  result  upon  the 
subsequent  civilization  and  laws  of  the  English  people. 
The  change  effected  by  the  Anglo-Saxons  in  Britain  was 
much  more  radical  and  complete,  than  that  wrought  by  the 
other  Gennanic  nations  in  Gaul  and  Italy. 

§  360.  During  a  considerable  period  after  the  departure 
of  the  Romans,  the  native  Celtic  tribes  were  left  in  the  pos- 
session, though  not  peaceable,  of  their  country.  Fierce, 
internecine  wars  immediately  sprmig  up  among  them, 
which  undoubtedly  must  have  obliterated  much  of  the 
effects  of  the  Roman  residence,  and  which,  according  to 
most  writers,  resulted  in  the  introduction  of  the  Saxons  to 
assist  one  of  the  contending  parties,  and  their  conquest  of 
the  southern  portion  of  the  island. 

§  361.  Even  at  the  time  when  Julius  Caesar  was  leading 
his  victorious  legions  against  the  Celts  in  Gaul  and  Britain, 
another  race  of  people,  who  had  followed  the  footsteps  of 
the  first  migration  from  Asia,  and  who  were  destined  after- 
ward to  act  a  most  important  part  in  the  history  of  the 
world,  and  to  enjoy  with  the  Latins  the  ofiice  of  impressing 
themselves  upon  the  civilization  of  all  subsequent  times, 
had  already  pressed  up  to  the  east  bank  of  the  Rhine. 
These  were  the  German  or  Teutonic  tribes.  For  a  long  time 
they  were  successfully  resisted  by  the  superior  prowess  of 
the  empire,  but  as  this  began  to  wane,  and  was  given  up  to 


THE    SAXON   IN^■ASIONS.  217 

Inxuiy,  the  fierce  barbarians  broke  in  iipon  it  in  numerous 
and  terrible  invasions,  until  at  length,  in  the  fifth  century, 
Gaul,  Spain,  and  even  Italy  were  swept  over  and  subdued 
by  these  hordes,  and  the  western  empire  was  ended.  About 
the  year  415,  the  Yisigoths  penetrated  Spain.  Shortly 
after  the  Burgundians  invaded  Gaul,  and  were  succeeded 
by  the  Franks,  who  established  themselves  firmly  upon  the 
ruins  of  the  old  provincial  rule.  Kome  itself  was  captured 
in  the  year  476  by  the  barbarians  under  Odoacer,  who  was 
in  turn  driven  out  by  the  Ostrogoths  in  493.  About  a  cen- 
tury after,  the  Lombards  founded  a  kingdom  in  the  north 
of  Italy. 

§  362.  The  Saxons  and  the  Angles  were  two  of  this 
family  of  tribes,  who  had  settled  -down  on  the  shores  of  the 
German  Ocean  and  of  the  Baltic.  In  the  year  449,  with 
small  numbers,  they  began  the  invasion  of  Britain,  and  con- 
tinued their  successive  inroads,  until,  by  the  year  560,  the 
great  mass  of  the  Saxons  and  Angles  had  been  transferred 
from  the  continent ;  the  Celts  had  been  driven  into  "Wales 
and  Ireland,  or  had  been  reduced  to  a  state  of  subjugation  ; 
and  Britain  was  in  possession  of  and  dominated  over  by 
numerous  small,  independent,  and  often  hostile  peoples,  who 
all  belonged  to  the  Teutonic  family  of  races.  Histories  gen- 
erally give  a  detailed  account  of  the  circumstances  under 
which  this  first  invasion  took  place,  and  describe  it  as  char- 
acterized by  much  faith  on  the  part  of  the  Britons,  and 
treachery  on  the  part  of  the  Saxons ;  but  Kemble,  in  the 
first  chapter  of  his  "  Saxons  in  England,"  has  done  much  to 
shake  all  confidence  in  these  traditions,  and  they  are  prob- 
ably like  the  myths  embodied  by  luivj  in  his  history  of  the 
early  Romans.  It  is  generally  stated  in  histories  that  orig- 
inally the  English  country  was  divided  into  seven  or  eight 
distinct  kingdoms,  but  Sir  Francis  Palgrave,  Mr.  Kemble, 
and  Mr.  Allen,  have  all  shown  that  in  the  earlier  years  of 
their  ruie,  this  division  was  much  more  minute,  and  that 
these  eiglit  kingdoms  which  formed  the  octarchy  were  in 


218  THE   AXGLO-SAXONS. 

fact  only  loose  aggregations  of  independent  tribes,  each 
with  its  own  military  head  or  chieftain.  Still  these  larger 
kingdoms  afterward  became  more  clearly  defined.  They 
were  often  hostile,  and  the  more  powerful  ones  absorbed 
the  weaker,  until,  in  the  year  827,  the  whole  Saxon  people 
were  brought  under  the  headship  of  King  Egbert.  The 
Anglo-Saxon  supremacy,  with  frequent  interruptions,  and 
even  temporary  suspension  by  the  Northmen,  continued 
until  its  final  overthrow  by  the  Normans  under  "William 
the  Conqueror  in  the  year  1066. 

§  363.  I  now  propose  to  give  a  sketch  of  the  customs, 
laws,  and  institutions  of  this  people,  who  ruled  over  Eng- 
land for  so  long  a  time  at  the  commencement  of  the  present 
civilization,  and  who  have  transmitted  their  blood,  their 
race  life,  much  of  their  language,  and  some  of  their  institu- 
tions to  the  present  times. 

§  364.  It  must  not  be  supposed  that  during  this  long 
establishment  of  the  dominant  people  in  England,  the  Sax- 
ons had  remained  stationary  ;  that  the  laws  of  the  age  which 
closed  their  career,  were  entirely  the  same  as  those  which 
they  brought  from  their  native  shores.  On  the  contrary,  a 
great  change  had  been  effected  in  the  people,  and  in  their 
legislation.  They  overran  Britain  as  a  collection  of  wild, 
barbarous,  pagan  tribes  ;  they  became  a  nation,  not  indeed 
firmly  knit  together  by  the  idea  of  an  empire  one  and  indi 
visible,  but  possessing  one  head,  one  general  assembly  of 
notables,  common  hopes  and  interests.  They  had  attained 
to  a  considerable  refinement  in  manners,  though  still  infe- 
rior in  this  respect  to  the  Normans  ;  the  Christian  religion 
had  mitigated  much  of  the  oiiginal  tribal  fierceness ;  inter- 
course with  France  had  become  common.  Tliere  was  then 
a  marked  thougli  gradual  progress  from  the  rude  customs 
of  the  first  invaders,  to  the  more  settled  policy  of  Alfred,  of 
Edward,  and  of  Harold.  The  same  general  institutions  are 
retained,  the  same  ideas  form  the  basis  of  social  order  and 
of  legislation,  but  the  detail  is  considerably  altered.     In 


THE    RIGHTS    AND    CLASSES    OF    PERSONS.  219 

describing  these  ideas,  institutions,  and  legislation,  I  shall 
separate  the  subject  into  three  divisions. 

I.  That  which  relates  to  persons  ;  their  class  divisions  ; 
their  rights  and  duties. 

II.  That  which  relates  to  property  ;  and, 

III.  That  which  relates  to  the  political  organization ; 
the  government ;  the  means  of  administering  justice  and  of 
affording  protection  to  life  and  property. 

I.    OF  PERSONS. 

§  365.  Among  all  the  Teutonic  nations  which  spread 
over  western  Europe,  and  which,  having  a  common  race 
origin,  should  naturally  possess  some  common  ethnic  institu- 
tions underlying  their  policy,  we  find  two  fundamental 
principles,  as  the  basis  of  the  whole  superstructure  of  socie- 
ty. These  are,  1st,  the  possession  of  lands,  and  2d,  the 
distinctions  of  rank.  Our  earliest  knowledge  of  the  Anglo- 
Saxons  exhibits  them  at  a  time  when  their  original  customs 
were  retained  in  their  integiity,  as  possessing  both  of  these 
essential  features. 

§  366.  The  great  class  distinction,  running  through  the 
whole  social  organization,  was  that  which  separated  the  peo- 
ple into  the  free  and  the  unfree.  With  this  was  connected 
and  interwoven  the  principle  of  landed  possession,  for  at 
first  the  unfree  could  hold  no  lands  as  their  own  property, 
and  he  who  was  possessed  as  owner  of  no  lands,  was  not 
wholly  free.  This  use  of  the  term  free,  must  not  be  con- 
founded with  its  general  acceptation  at  the  present  day,  as 
opposed  merely  to  the  condition  of  slavery.  It  refers  sim- 
ply to  the  status  of  the  person,  and  the  amount  of  privileges 
he  could  legally  enjoy  as  an  essential  element  of  the  state. 
Some  of  the  unfree  were  to  all  intents  slaves,  serfs  of  the 
most  abject  description  ;  others  were  rich,  noble,  possessing 
immunities  which  they  gladly  purchased  by  the  loss  of  the 
somewhat  barren  rights  of  freemen.  But  this  latter  class 
belongs  more  to  the  later  development  of  the  Saxon  polity. 


220  THE   ANGLO-SAXONS. 

tlian  to  its  condition  when  first  clearly  made  known  in 
history. 

§  367.  The  general  class  of  the  free  enjoyed  certain  im- 
portant privileges,  which  distinguished  them  from  all  others, 
and  which  they  had  inherited  as  a  part  of  their  race  and 
tribal  life.  They  were,  however,  by  no  means  all  equals. 
Equality  and  freedom,  with  the  Saxons  and  other  Teutonic 
nations,  were  not  convertible  terms.  Freemen  were  then 
subdivided  into  two  generic  classes,  the  noble,  and  those 
not  noble,  or,  in  their  own  language,  the  "  Eorl,"  and  the 
"  Ceorl." 

§  368.  The  rights  of  the  freeman,  as  contrasted  with  the 
unfree  were,  that  he  had  the  power  and  legal  capacity  to 
protect  himself,  whether  he  be  "  Eorl,"  or  "  Ceorl ;  "  while 
the  unfree,  whether  serf  or  of  gentle  birth,  must  be  in  a 
state  of  dependence  or  vassalage  upon  some  other  persons, 
must  be  in  another's  "  mund."  This  general  distinction, 
which  drew  a  broad  line  of  demarcation  between  these 
classes,  exhibited  itself  in  numerous  details  of  privileges 
which  belonged  to  the  favored  freemen.  They  could  hold 
lands  in  their  own  right,  in  the  communities  of  which  they 
formed  a  part,  and  these  possessions  were  termed  their 
"  alods,"  or  inheritances,  whence  is  derived  the  term  allo- 
dial, subsequently  introduced  by  legal  writers  to  describe 
lands  held  by  one  in  his  own  complete  right,  without  any 
element  of  dependence  upon  a  superior  lord.  And  this 
ownership  of  lands  was  necessary  to  the  full  enjoyment  of 
the  rights  belonging  to  the  class.  The  fi-eeman,  thus  in  the 
possession  of  a  share  of  the  soil,  could  unite  with  his  fellows 
in  all  matters  concerning  the  general  interests  and  welfare 
of  the  community.  One  of  the  most  important  of  this 
branch  of  rights,  was  the  ability  to  attend  the  local  folk 
courts,  and  join  in  their  deliberations  and  the  decision  as 
one  of  the  primitive  judges  of  law  and  facts,  of  the  contro- 
versies brought  before  them.  In  these  assemblies,  not  only 
judicial  business,  but  all  tlu.t  affected  the  interests  of  the 


FREEMEN — THE  EOKL — THE  CEOKL.  221 

local  commmiities  whicli  tliey  represented,  were  transacted. 
The  freemen  had  also  the  right  to  leave  their  residence,  to 
abandon  the  community  to  which  they  belonged,  and  de- 
part to  another.  Tliey  could  also  bear  anns,  and  wage  pri- 
vate warfare,  called  the  feud,  against  those  persons  or  fam- 
ilies who  had  injured  them,  and  thus  make  reprisals  for 
acts  of  violence.  The  land  held  by  the  freemen  was  also 
burdened  by  fewer  restrictioDS  than  that  in  the  possession 
of  the  unfree.  Their  measure  or  value  in  the  eye  of  the  law 
and  of  the  community  was  their  "  wehrgyld,"  or  price  of  a 
man,  which  will  be  more  fully  explained  in  the  sequel. 

§  369.  Thus  it  is  evident  that  all  of  these  sj)ecial  privi- 
leges of  the  freeman  unite  in  the  broader  distinction,  that 
he  could  govern  himself.  He  entered  into  and  took  a  most 
active  part  in  all  the  administrative  affairs  of  the  local  com- 
munity of  which  he  was  a  member.  He  was  a  living  unit 
in  the  state.  To  such  an  extent  was  this  right  carried,  that 
it  included  even  the  power  to  abdicate  the  status  of  freeman, 
to  resign  all  of  its  distinctive  privileges,  and  attach  himself 
to  some  lord  or  patron  as  a  superior,  under  whose  control 
he  entered,  in  whose  dependence  he  placed  himself,  and 
thus  passed  into  the  class  of  the  unfree. 

§  370.  These  essential  characteristics  belonged  to  the  no- 
ble, and  to  the  not  noble,  to  the  "  Eorl,"  and  to  the  "  Ceorl," 
for  both  were  to  the  full  extent  freemen.  Yet  the  Eorl  pos- 
sessed important  advantages.  His  "  wehrgyld,"  or  price, 
was  higher  than  that  of  the  otlicr.  In  fact,  the  Eorl  was 
also  designated  as  "  Twelfhaendman,''  while  to  the  Ceorl 
was  given  the  appellation  of  "  Twihaendman,"  which  would 
place  their  comparative  worth,  in  the  estimation  of  the  Saxon 
law,  in  the  ratio  of  12  to  2,  or  6  to  1.  This  preponderance 
of  value  in  the  eorl  over  the  ceorl  sliows  itself  in  a  variety 
of  ways,  but  always  one  noble  is  considered  as  equal  to  six 
simple  freemen.  Thus,  in  judicial  disputes,  when  it  became 
necessary  to  resort  to  the  oaths  of  compurgators,  as  has  been 
previously  described,  that  of  one  eorl  was  equivalent  in 


222  THE   ANGLO-SAXONS. 

effect  to  those  of  six  ceorls.  In  private  warfare  or  feuds, 
the  life  of  one  eorl,  which  had  been  taken  by  a  ceorl,  could 
only  be  avenged  by  the  death  of  six  ceorls,  of  the  clan  or 
kindred  of  the  offender.  When  acts  of  violence  were  repaid 
by  fines  of  money  or  property,  which,  as  we  shall  presently 
see,  was  a  common  practice,  the  wehrgyld,  or  compensation, 
paid  for  the  life  of  a  noble  was  six  times  as  great  as  that 
exacted  for  the  life  of  the  simple  freeman.  The  nobles  were 
also  richer  ;  they  could  hold  larger  landed  possessions.  But 
their  most  imj)ortant  advantage  was  of  a  political  nature. 
From  among  this  class  alone  could  the  chief  judges,  the 
ealdormen,  and  the  kings  be  chosen. 

§  371.  In  a  society  so  constituted,  the  tendency  of  these 
two  classes  was  continually  to  separate.  As  the  state  grad- 
ually progressed,  the  power  lodged  in  the  hands  of  the 
nobles  would  steadily  increase,  and  the  privileges  origi- 
nally belonging  to  the  simple  freemen  would  as  constantly 
diminish. 

§  372.  Tlie  social  organization  thus  portrayed  was  that 
of  the  Saxons  in  their  primitive  condition.  We  see  that  a 
strong  and  sturdy  element  of  self-dependence  characterized 
it.  Yet  tliere  is  contained  in  it  the  genn  of  a  future  devel- 
opment of  class  status,  very  different  from  that  of  the  self- 
reliant  "  Ceorl  "  and  "  Eorl,"  This  is  found  in  the  possi- 
bility of  a  third  division  of  persons,  unfree  in  the  primitive 
acceptation  of  the  term,  and  yet  not  slaves  or  serfs  ;  free  or 
noble  born,  perhaps,  or  created  noble,  who  voluntarily  as- 
sumed a  condition  of  dependence  upon  some  superior  lord  or 
patron.  This  feature,  which  existed  as  a  germ  among  the 
2)rimitive  tribal  customs  of  the  Teutonic  nations,  finally  ex- 
panded into  the  feudal  system. 

§  373.  Side  by  side  with  this  old  order  of  nobles  by 
birth,  with  their  privileges  as  a  superior  order  of  freemen, 
grew  up  another  class,  who  were  nobles  by  service.  One 
of  tlie  most  important  powers  of  the  Saxon  king,  either  in 
the  primitive  times,  when  the  people  were  broken  up  into 


THE   NOBLE   TJNFREE — THE   THEGN.  223 

numerous  independent  tribes,  each  with  its  own  chieftain, 
or  later,  when  these  had  coalesced  into  a  few  larger  com- 
munities, or  later  still,  when  the  whole  were  consolidated 
into  one  kingdom,  was  that  of  collecting  about  himself  and 
supporting  a  body  of  retainers.  This  coniitatus  or  company 
was  of  the  greatest  service  to  the  king,  who  had  no  aniij, 
and  no  means  of  raising  one  except  bj  calling  out  a  levy  of 
the  freemen  entitled  to  bear  arms.  Upon  it,  therefore,  he 
leaned  more  and  more  for  the  accomplishment  of  his  designs, 
and  as  the  need  became  greater,  the  rewards  proportionably 
increased,  and  thus  there  grew  up  a  strong  personal  tie  be- 
tween the  chief  and  his  immediate  followers.  At  first  this 
institution  was  entirely  military  in  its  character,  but  with 
the  increase  of  the  royal  power,  it  embraced  also  the  civil 
administration  of  the  realm,  and  the  general  status  of  the 
nobles.  In  time  it  resulted  in  the  downfall  of  the  ancient 
nobles  by  birth,  and  the  establishment  of  a  new  order,  de- 
pending for  their  privileges  directly  upon  the  king,  looking 
to  him  as  the  fountain  of  honor  and  power,  and  yielding  to 
him  those  duties  which  the  primitive  organization  of  society 
demanded  for  the  community.  This  retainer,  or  comes, 
w^as  originally  only  a  servant,  a  dependent  upon  the  king, 
but  might  be  made  noble  by  the  direct  interposition  of  the 
royal  favor,  and  would  naturally  share  the  advantages 
flowing  from  this  source.  Entering  into  the  service  of  the 
king,  passing  under  his  protection,  the  comes  was  not  origi- 
nally free,  but  although  he  lost  the  privileges  of  freeman, 
he  was  more  than  repaid  by  the  honor  of  the  king.  As  re- 
wards for  his  services,  rendered  in  wars,  or  in  personal 
attendance,  or  in  support  against  rivals,  or  in  the  adminis- 
tration of  the  royal  power,  he  received  grants  of  land  from 
out  of  the  king's  private  possessions,  or  from  the  public 
lands  annexed  to  the  crown  as  the  representative  of  the 
whole  nation ;  but  these  gifts  of  land  he  did  not  hold  as  his 
alod,  his  own  absolute  property,  but  simply  as  an  honorable 
tenant  of  the  monarch,  and  bound  therefor  to  render  him 


224  THE   AI^GLO-SAXONS. 

Buch  services  as  were  stipulated  for  in  the  charter  or  instru- 
ment by  which  the  gift  was  conveyed.  As  he  did  not  own 
his  lands  in  his  own  right,  and  therefore  could  not,  by  the 
primitive  constitution,  in  virtue  of  tins  property,  enter  into 
the  community  of  the  free  nobles,  so  his  own  tenants  did 
not  form  a  part  of  the  communities  of  free  ceorls,  but  stood 
to  him  in  the  same  relation  Avliich  he  bore  to  the  king ;  and 
this  consisted  of  fealty  and  dependence  on  the  one  side,  and 
of  protection  and  favor  on  the  other.  The  proper  name  of 
the  comes  was  ''gesith  ;  "  afterward  he  was  called  "  thegn." 
As  he  was  not  necessarily  a  noble  by  birth,  it  resulted,  after 
the  complete  establishment  of  the  order,  that  a  ceorl  might 
be  raised  to  the  dignity  of  thegn  by  the  performance  of  cer- 
tain conditions,  one  of  which  was  the  possession  of  a  stipu- 
lated amount  of  property. 

The  privileges  of  this  class  became  great.  As  the  power 
of  the  king  increased,  and  the  distribution  of  rewards  in  the 
shape  of  lands  and  honors  and  offices  came  principally  into 
his  hands,  they  were  chiefly  meted  out  among  these  favored 
dependants,  to  the  exclusion  of  the  ancient  free  nobles  by 
birth.  Thus  the  latter  continually  sunk  in  importance  and 
consideration  in  the  state,  until  they  were  completely  ab- 
sorbed in  the  ranks  of  nobles  by  service. 

§  374.  In  the  later  periods  of  Anglo-Saxon  history,  we 
have  then  the  original  "  ceorl  "  left  existing,  though  much 
depressed  from  his  primitive  state  of  freedom,  by  passing 
into  the  condition  of  vassalage  to  the  nobles ;  and  the  nobles 
by  service  or  "  thegns,"  bound  to  the  king  by  the  obligation 
of  fealty,  possessing  large  estates  in  lands,  and  often  them- 
selves surrounded  by  bands  of  inferior  retahiers.  The  two 
classes  had  become  widely  separated  ;  the  one  had  increased 
in  power ;  the  other  had  sunk  in  the  social  scale.  In  this 
we  certainly  have  the  commencement  of  the  feudal  system. 

§  375.  The  other  class  of  the  unfree,  the  "  Theows," 
were  serfs  or  absolute  slaves.  They  were  either  reduced  to 
this  condition  as  the  punishment  for  crimes,  or  by  being 


OF  PERSONAL  PEOPEKTT.  225 

taken  prisoners  in  war,  or  they  were  born  so  from  parents 
already  serfs.  It  is  probable  that  a  large  part  of  these 
slaves  were  ancient  Britons  and  their  descendants.  The 
theow  was  a  mere  chattel ;  he  had  no  rights  ;  could  be  trans- 
ferred from  one  owner  to  another ;  had  none  of  the  privileges 
of  freemen ;  was  not,  in  fact,  an  element  of  the  community 
or  state.  His  situation  was  deplorable ;  but  the  church  was 
continually  and  successfully  struggling  to  mitigate  it. 

II.    OF    PROPERTY. 

§  376.  1.  Of  Personal  Property. — Among  the  Anglo- 
Saxons,  as  with  all  partially  civilized  nations,  unless  the 
nomadic,  personal  property  enjoyed  but  little  consideration 
in  compai'ison  with  lands,  and  its  use  and  transfer  were  fet- 
tered by  regulations,  necessary  in  a  society  addicted  to  vio- 
lence, but  which  would  be  insupportable  in  a  more  devel- 
oped condition  of  national  resources,  when  this  species,  of 
property  had  increased  in  value  and  amount.  The  personal 
wealth  of  the  Saxons  consisted  almost  entirely  in  cattle,  and 
the  laws  against  theft  were  framed  with  an  especial  refer- 
ence to  their  protection.  Possession  gave  a  prima  facie  title 
or  right  of  ownership  to  the  possessor.  This  simple  posses- 
sion might  be  confirmed,  and  the  absolute  title  established 
in  two  ways.  The  first  was  by  proving  that  the  animal  had 
been  his  from  its  birth,  which  fact  rested  upon  his  own  oath, 
supported  by  that  of  a  compurgator.  The  second  method 
was  by  showing  a  valid  purchase,  and  calling  in  the  seller 
to  warrant  the  title,  or,  in  other  words,  to  prove  that  his 
own  original  possession  was  legal. 

§  377.  The  laws  of  the  Saxons  respecting  sales  were  se- 
vere and  ill  suited  to  a  social  state  like  our  own,  but  were 
fitted,  among  a  rude  community,  to  repress  thefts  and  fraud- 
ulent practices.  In  order  that  a  sale  should  be  legal,  and 
pass  a  title  in  the  property  to  the  purchaser,  it  must  have 
been  made  in  an  open  public  market  (market  overt),  in  the 
presence  of  trustworthy  witnesses.  Many  modifications 
15 


226  THE   ANGLO-SAXONS. 

were  made  from  time  to  time  in  this  rule,  by  the  codes  pro- 
mulgated by  different  kings,  and  finally  a  class  of  special 
officers  was  appointed  in  each  local  community,  before 
whom  all  sales  must  be  made;  but  the  principle  remained 
unaffected  for  a  considerable  time  after  the  Norman  con- 
quest, and  slight  traces  of  it  are  to  be  found  in  the  legisla- 
tion of  England  at  the  present  day.  Some  analogy  may  be 
traced  between  this  rule  of  the  Saxon  law,  and  that  of  the 
early  Romans,  which  rendered  a  transfer  of  certain  kinds  of 
property  entirely  nugatory,  no  matter  how  full  and  fair  a 
price  had  been  paid,  unless  certain  arbitrary  public  forms 
had  been  strictly  followed. 

§378.  2,  Of  La/rid^. — As  an  introduction  to  the  rules 
of  ownership  and  transfer  of  lands,  it  will  be  useful  to  give 
a  sketch  of  the  method  of  settlement  and  inhabitancy  of  the 
cultivated  portions  of  the  soil. 

.  The  primitive  feature  of  Saxon  settlement  upon  land, 
and  aggregation  into  society,  was  the  "  Mark ;  "  and  this  is 
also  found  in  other  Teutonic  nations,  and  the  name  is  pre- 
served in  the  word  "  marches,"  still  in  use  on  the  continent. 
The  mark  seems  to  have  disaj^peared  in  England,  even  be- 
fore the  end  of  the  Saxon  dynasty.  The  meaning  of  the 
word  is  something  marked  out,  with  settled  and  definite 
boundaries.  It  was  the  plot  of  land  upon  which  a  greater 
or  less  number  of  free  persons  with  their  families  and  de- 
pendents, as  a  single,  separate,  undivided  community,  set- 
tled down  for  purposes  of  cultivation  and  dwelling,  and  in- 
cluded all  varieties  of  soil.  Thus  the  mark  represented  the 
entire  tract,  chosen  for  some  advantages  of  situation,  a  cul- 
tivated opening  in  the  midst  of  the  primeval  forests.  The 
ancient  Saxon  did  not,  like  our  own  hardy  backwoodsman, 
isolate  himself  from  his  fellows  and  make  his  solitary  clear- 
ing in  the  unbroken  wilds ;  he  was  one  of  an  association 
bound  together  by  common  interests,  and  probably  by  ties 
of  kin  or  clanship. 

§  379.  The  term  was  also  applied  to  the  boundary  or  en- 


LANDS — THE  MAEK — THE  MANOR.  227 

velope  of  forests  which  surrounded  the  settled  and  improved 
territory,  and  formed  the  barrier  or  line  of  separation  be- 
tween it  and  the  other  neighboring  marks.  This,  for  a  cer- 
tain distance  at  least,  was  the  common  property  of  the  in- 
habitants or  marksmen,  and  was  regarded  by  them  with 
much  superstitious  veneration.  Here  in  pagan  times  dwelt 
the  spiritual  beings ;  here  were  the  sacred  groves  for  tho 
worship  of  the  deities.  As  the  community  grew  by  addi- 
tions from  new  comers,  and  from  the  natural  increase  of  the 
people,  the  bounds  of  the  cultivated  soil  gradually  extended, 
and  encroached  upon  the  forests,  whicli  were  felled,  and  the 
land  appropriated  to  the  uses  of  husbandry.  This  new  ad- 
dition to  the  arable  and  pasturage  was  the  common  property 
of  the  whole  association  of  marksmen  ;  it  formed  a  portion 
of  the  folk-land.  These  marks  were  scattered  over  the 
whole  extent  of  the  country,  and  in  addition  to  the  towns 
already  in  existence  at  the  time  of  the  invasion,  were  the 
centres  of  population. 

§  380.  The  district  thus  occupied  by  a  single  community 
was  divided  up  for  the  use  of  the  settlers.  A  portion  of  it, 
consisting  of  arable,  of  pasture,  of  marsh,  and  of  forest,  was 
left  common.  A  large  part  of  the  arable,  however,  was 
separated  into  distinct  lots,  so  that  each  free  inhabitant 
could  possess  at  least  one,  as  the  owner  in  his  own  right. 
Those  who  had  no  suck  share  were  the  unfree ;  they  were 
not  an  element  of  the  community  itself;  they  could  npt  re- 
present themselves  in  the  folk-courts;  they  were  in  the 
"  mund  "  or  hand  or  dependence  of  another.  Each  share 
thus  owned  by  a  single  proprietor,  was  called  by  the  Anglo- 
Saxons  a  hide.  A  hide  was  then  the  estate  of  one  household, 
the  amount  sufficient  for  the  support  of  one  family.  The 
allotment  owned  by  each  individual  free  marksman  was, 
in  the  strict  meaning  of  the  term,  his  "  alod,"  or  inheritance. 

§  381.  This  was  the  primitive  condition  of  the  Anglo- 
Saxon  settlements,  while  the  rights  and  privileges  of  the  free 
were  preserved  and  guarded,  before  the  practice  became 


228  THE   ANGLO-SAXONS. 

prevalent  of  creating  nobles  by  tbe  king,  and  rewarding 
them  for  their  services  by  grants  of  land,  to  be  held  by  the 
tie  of  fealty.  These  lands  of  course  could  not  form  a  portion 
of  the  mark,  nor  could  the  tenants  M'ho  lived  upon  and  cul- 
tivated them  be  numbered  among  the  free  marksmen,  be- 
cause they  did  not  hold  their  possessions  in  their  own  abso- 
lute right,  but  simply  as  the  vassals  of  a  superior  lord.  As 
the  change  continued  to  extend  in  the  Anglo-Saxon  society, 
and  the  ancient  nobility  by  birth  were  absorbed  into  the 
number  of  nobles  by  service,  and  their  estates  were  held  by 
the  feudal  tie,  and  the  inferior  cultivators  of  the  soil  passed 
into  the  condition  of  vassalage,  the  marks,  with  their  simple 
constitution,  their  assemblage  of  freemen,  and  their  small 
properties,  would  seem  to  have  gradually  disappeared,  and 
to  have  been  replaced  by  the  form  resulting  from  this  revo- 
lution in  the  social  organization. 

§  382.  Now  we  find  a  lord,  or  king's  thegn,  a  convent, 
monastery  or  abbey,  enjoying  the  sovereignty  of  a  large 
territory,  residing  or  situated  upon  a  portion  of  it,  and  ac- 
tually occupying  so  much  as  was  necessary  for  the  conve- 
nience of  the  noble  proprietor,  or  of  the  religious  hous6. 
Tlie  rest  is  occupied  by  the  tenants  who  are  grouped  about 
this  centre,  forming  a  distinct  community,  of  which  'the 
thegn,  or  the  sacred  corporation,  is  the  head.  A  part  of  this 
territory  had  been  formerly  graqted  out  to  certain  of  these 
tenants,  by  written  charters  or  deeds,  and  was  held  by  them 
as  their  individual  possessions,  under  such  restrictions,  and 
with  such  services,  as  the  provisions  of  the  charter  might 
impose.  Other  portions  were  held  by  the  tenants,  not  by 
any  definite  grants  from  the  lord,  but  by  customary  or  folk- 
right.  Still  a  third  division  was  left  in  common  for  the  use 
of  the  lord,  and  of  tlie  entire  community.  This  tract  of 
land  and  this  aggregation  of  tenants  or  vassals,  surrounding 
the  residence  of  a  superior  lord,  and  bound  to  him  by  the 
ties  of  fealty,  holding  their  possessions  from  him  by  services 
performed  for  him,  was  termed  in  the  subsequent  period. 


'  TRANSFERS   OF   LANDS.  229 

under  the  Normans,  a  "  manor,"  and  it  represents  the  ele- 
ment of  the  feudal  social  oi-ganization. 

§  383.  As  well  in  the  primitive  as  in  the  latter  periods 
of  the  Anglo-Saxon  occupancy  of  England,  a  portion  of  the 
territory  was  termed  "  Folk-land."  This  was  such  as  had 
not  been  parceled  out  into  alods,  or  granted  to  individual 
owners.  It  belonged  to  the  state,  and  was  the  common 
property  of  the  people  or  folk,  and  in  later  times,  when  the 
nation  had  been  united  into  one  kingdom,  was  under  the 
control  of  the  king  and  his  great  council.  The  final  owner- 
ship being  in  the  state,  the  use  and  possession  of  particular 
portions  could  be,  and  often  were  transferred  to  individual 
tenants,  to  be  held  by  them  in  such  manner  and  by  such 
services  as  the  charters  or  deeds  might  prescribe.  Thus  it 
was  that  the  king's  nobles,  those  who  formed  his  comitatus 
and  were  bound  to  him  by  fealty,  secured  the  reward  of 
their  attachment  and  devotion.  That  part  of  the  soil  which 
had  actually  been  granted  by  charter  or  solemn  writing,  and 
had  become  the  property  of  the  possessor,  was  termed  Boc- 
land. 

§  384.  Of  the  rules  of  inheritance  to  lands,  of  the  de- 
scents to  heirs  after  the  death  of  the  owner,  little  is  known 
except  that  the  estate  passed  to  the  children  of  the  deceased, 
if  any  were  living,  but  whether  to  the  males  alone,  or  to 
the  males  and  females  alike,  cannot  be  determined.  Wills 
were  also  in  use.  But  the  disposition  of  boc-land,  or  lands 
which  had  been  granted  by  charter  or  written  instrument, 
after  the  death  of  an  owner,  of  course  depended  upon  the 
provisions  of  the  charter  which  was  the  foundation  of  the 
rights  of  proprietorship.  If  this  conveyed  an  absolute  full 
title,  unfettered  by  any  restrictions,  the  pov^er  of  the  owner 
was  complete  ;  he  might  sell  or  devise  by  will  at  his  pleasure  ; 
after  his  death  without  a  will,  the  estate  would  descend  di- 
rectly to  his  heirs.  But  these  charters  often  imposed  re- 
straints upon  this  unlimited  ownership ;  they  might  give 
an  estate  during  the  time  of  a  single  life  only,  when  the  land 


230  THE   ANGLO-SAXONS. 

would  revert  back  to  the  original  proprietor  upon  the  death 
of  the  tenant ;  or  they  might  point  out  the  class  of  persons 
to  whom  it  should  pass  upon  tlie  decease  of  the  immediate 
possessor,  a&  to  his  oldest  son,  or  to  his  children  gen-erally, 
and  thus  create  a  species  of  proprietorship  in  lands,  after- 
wards known  as  an  entail.  The  provisions  of  these  charters 
of  course  varied,  depending  upon  the  pleasure  or  caprice  of 
the  person  who  originally  disposed  "of  the  land  by  their 
means,  whether  king  or  private  individual. 

§  385.  The  transfer  of  landed  property  might  be  com- 
pleted without  any  wiiting,  in  which  case  it  was  evidenced 
by  the  delivery  of  some  symbolic  token.  Thus  upon  the 
conveyance  of  the  absolute  right  to  the  land,  some  portion 
of  the  very  soil,  a  turf  or  a  stone,  was  handed  to  the  pur- 
chaser in  the  presence  of  witnesses  ;  when  only  an  usufruc- 
tuary interest,  or  right  to  the  profits  of  the  land,  was  parted 
with,  some  product  of  the  soil,  a  rod,  or  branch,  or  straw, 
was  given.  At  a  later  time  the  evidence  of  the  transaction 
was  more  often  committed  to  writing,  and  the  charters  thus 
became  the  foundations  of  the  rights  of  the  possessor,  to 
which  he  must  refer  for  proof  of  his  claims. 

III.— OF  THE  POLITICAL  ORGANIZATION,  THE  GOVERNMENT,  THE 
MEANS  OF  ADMINISTERING  JUSTICE,  AND  OF  AFFORDING  PROTEC- 
TION TO  LIFE  AND  PROPERTY. 

§  386.    1.  NUMEKICAL  AMD  TEKRnORIAL  DIVISIONS. — The 

free  Anglo-Saxon  people  and  their  territory  were  divided 
up,  for  the  pui-poses  of  the  civil  administration  and  of  the 
preservation  of  the  peace  and  mutual  protection,  into  sepa- 
rate local  organizations.  At  the  basis  of  this  lay  two  ele- 
mentary principles  ;  the  tie  of  the  ftimily,  kindred,  or  clan  ; 
and  the  tie  of  territory.  Among  all  the  Gennanic  nations, 
the  idea  of  family  was  one  of  great  power.  The  primitive 
form  of  these  ultimate  communities  was  that  of  septs,  or 
kindreds ;  but  these  in  time  gave  way  to  others. 

§  387.  (1.)  T/te  Tyihing. — During  the  period  of  Anglo- 


THE   TTTHTSTG — THE    HIJNDEED — THE   8HIEE.  231 

Saxon  history  with  which  we  are  the  best  acquainted  the  Ty- 
thing  is  the  elemental  division.  This  does  not  seem  to  have 
been  founded  upon  a  territorial  basis,  but  was  composed  of  ten 
families  or  households  of  free  men,  not  in  the  "  nmud  "  or  un- 
der the  protection,  as  vassals,  of  a  superior  lord.  The  head  or 
officer  of  this  small  organization  was  the  tything-man,  an- 
swering to  the  "  Decanus  "  among  the  Franks.  The  peculiar 
function  of  the  tything  wUl  be  explained  in  the  sequel. 

§  388.  (2.)  The  Hundred. — ^This  was  the  division  next  in 
order  to  the  tything.  Its  exact  organization  is  shrouded  in 
much  doubt.  It  has  been  assumed  to  have  been  composed  of 
a  hundred  hydes  of  land,  of  a  hundi-ed  free  families,  of  a 
hundred  tythings,  or  of  a  hundred  freemen.  One  supposi- 
tion would  make  its  basis  territorial,  the  others,  numerical. 
It  is  certain  however  that  the  hundred  contained  a  consider- 
able number  of  free  households ;  that  it  was  a  permanent 
association ;  that  it  had  a  chief  officer  or  head  called  the 
hundred-man  ;  that  once  in  each  month  the  freemen  assem- 
bled in  a  district  court,  whose  functions  and  duties  have 
been  already  described.  This  union  of  the  freemen  of  the 
hundred  into  a  local  tribunal  was  indeed  the  distinguishing 
feature  of  the  institution. 

§  389,  The  Burgh  was  only  a  hmidi'ed  or  a  union  of 
hundreds  in  a  more  compact  form,  sm-rounded  by  a  moat,  or 
stockade,  or  wall.  It  also  transacted  its  own  affairs  by 
means  of  its  burgh  courts. 

§  390.  (3.)  The  Shire.— The  shires  were  strictly  territo- 
rial divisions.  Some  were  in  their  origin  ancient  kingdoms, 
as  Kent,  and  Sussex,  others  were  formed  by  a  dismember- 
ment of  these  states.  The  shire  having  definite  boundaries, 
included  within  its  limits  free  inhabitants  grouped  into  ty- 
things,  and  hundreds,  and  king's  thegns  with  their  vassals, 
and  religious  houses  and  corporations  with  their  tenants  and 
dependents.  The  chief  officer  was  the  ealdormau.  The  lo- 
cal affairs  were  adniinistered  through  the  shire  courts,  which 
have  been  alreadv  alluded  to.     These  Anglo-Saxon  territo- 


232  THE   ANGLO-SAXONS. 

rial  divisions,  togetlier  witli  some  of  their  powers  and  privi- 
leges, have  been  retained  to  the  present  time  in  England  and 
most  of  the  American  States.  Our  own  counties,  with  their 
local  legislation,  represent  the  Saxon  idea  of  a  political  or- 
ganization, in  withdrawing  the  administration  of  much  that 
concerns  the  interests  of  the  people,  from  the  central  or  im- 
perial government  of  the  state,  and  coniiding  it  directly  to 
the  body  of  the  citizens  within  the  limits  of  the  district. 

§  391.  2.  The  Executive  and  Administeative  Officees. 
(1.)  The  King. — Among  the  Saxons,  as  among  all  other 
Germanic  tribes,  in  their  primitive  condition,  there  was  no 
king,  in  the  strict  sense  of  that  term.  The  Saxon  name, 
"  Cyning,"  had  a  far  diflPerent  meaning  from  that  which  we 
give  to  the  word  king.  He  was  an  elective  military  chieftain 
of  tribes  and  peoples,  not  of  a  temtory.  At  the  time  of  the 
invasion  of  Britain,  there  were  many  of  these  separate  and 
independent  leaders ;  but  as  the  weaker  tribes  succumbed  to 
the  more  powerful,  and  the  octarchy  was  established,  their 
monarchs  were  yet  styled  the  kings  of  the  people,  not  of  the 
country. 

§  392.  As  the  state  advanced  and  finally  became  united 
under  one  head,  the  power  of  the  crown  gradually  increased. 
This  was  due  to  many  causes ;  partly  to  the  growth  of  an 
idea  of  national  nnity,  and  partly  to  the  influence  of  the 
clergy,  who,  directly  connected  with  E.ome,  and  drawing 
thence  most  of  their  opinions,  preserved  and  inculcated  the 
traditions  of  the  later  empire,  and  sought  to  build  up  the 
royal  power,  and,  by  becoming  its  champions,  to  increase  and 
establish  more  firmly  the  authority  of  the  church. 

§  393.  The  king  as  the  superior  person  of  the  nation  was 
distinguished  by  a  larger  "  wehrgyld,"  or  value,  than  that  of 
any  other;  he  presided  over  the  witena-gemote,  or  great 
council  of  the  state ;  was  the  final  judge  to  whom  disputes 
must  be  referred  which  could  not  otherwise  be  decided. 
From  the  time  of  Aethelbirht,  king  of  the  Kentish  peoj^le 
(A.  D.  597-616),  at  least,  he  issued  laws,  with  the  consent 


THE  KING — THE  EALDOKMAN — THE  GEKEFA.      233 

and  sanction,  however,  of  his  great  council.  All  of  the 
codes  collected  in  the  "Ancient  Laws  and  Institutes  of 
England  "  recite  that  the  king  enacts  or  commands  with  the 
advice  of  his  "  witan."  He  had  also  the  power  of  appoint- 
ing the  ealdormen,  and  other  subordinate  officials, 

§  394.  As  the  piimitive  tribal  chieftain  was  elective,  so, 
to  the  close  of  the  Saxon  dynasty,  the  crown  was  never 
strictly  hereditary.  Although  the  royal  power  was  in  gene- 
ral confined  to  one  family,  yet  the  laws  of  descent,  as  ob- 
served in  modern  monarchical  governments,  were  not  fol- 
lowed ;  the  immediate  heir  of  a  deceased  monarch  was  often 
set  aside,  and  some  other  member  of  the  family,  perhaps  in 
a  collateral  branch,  was  chosen.  It  was,  of  course,  necessary 
that  the  important  functions  of  the  head  of  the  nation  should 
be  lodged  in  the  hands  of  an  individual  able  to  administer 
them  with  firmness  and  vigor.  The  king  was  then  in  truth 
elective ;  the  important  duty  of  designating  him  belonged 
to  the  witena-gemote,  but  the  choice  was  confined  to  a  lim- 
ited number  of  persons. 

§  395.  (2.)  The  Ealdorman. — The  principal  ofiicer  of  the 
shire  was  the  ealdorman.  In  primitive  times  he  was  the 
elected  chief;  in  later  times,  when  the  royal  power  had 
been  much  augmented,  he  was  appointed  by  the  king  with 
the  consent  of  the  council.  His  official  duty,  which  most 
concerns  our  enquiry,  was  that  of  presiding  in  the  shire  and 
hundred  courts,  assisted  by  a  bishop. 

§  396,  (3.)  The  Gerefa. — Another  officer  was  the  gerefa. 
This  was  a  generic  aj)pellation.  The  gerefa  of  the  shire  was 
a  royal  functionary,  who  assisted  the  ealdorman  and  repre- 
sented him  in  his  absence,  taking  his  place  as  president  of 
the  local  courts.  From  this  term  shire-gerefa,  or  its  equiv- 
alent shire-reeve,  we  derive  our  sherifi'.  The  manors,  de- 
scribed in  this  chapter,  had  also  their  executive  officer,  the 
tun-gerefa,  who  was  the  fiscal  agent  of  the  lord,  assisted  him 
in  the  regulation  of  the  domain,  represented  him  and  the 
community  in  the  hundred  and  shire  courts,  and  presided 


234  THE    ANGLO-SAXONS. 

in  the  court  of  the  manor.  He  was  chosen  by  the  ten- 
antry. 

§  397.  3.  Judicial  and  Administeative  Assemblies. 
(1.)  The  Hundred  and  Shire  Courts. — The  composition  of 
these  tribunals  and  their  power  in  deciding  controversies 
have  ah'eady  been  sufficiently  described.  They  were  also 
courts  of  voluntary  as  well  as  contentious  jurisdiction.  All 
transactions  by  which  property  might  be  acquired  or  lost, 
the  purchase  and  sale  of  land,  the  payment  of  money, 
were  effected  in  the  assemblies  of  the  hundi'ed.  Here 
charters  or  deeds  were  produced  and  read,  or,  if  they  had 
been  lost,  they  were  re-established  and  confirmed.  The 
shire  court  possessed  the  same  jurisdiction  as  that  of  the 
hundred,  and  an  appellate  power  in  addition. 

§  398.  (2.)  The  Witena-Gemote. — This  supreme  court 
and  general  council  of  the  kingdom  possessed  functions  more 
extensive  and  national  than  the  moots  of  the  shire  and  of 
the  hundred.  In  respect  to  its  composition  there  have  been 
many  opinions.  It  appears  certain,  however,  that  none  of 
its  number  were  elected  or  chosen  to  represent  a  body  of 
people  by  any  process  analogous  to  the  choice  of  members  of 
the  English  House  of  Commons.  Prof.  Lappenburg  declares 
that  "  there  is  no  reason  extant  for  doubting  that  every 
thegn  had  the  right  of  appearing  and  voting  in  the  witenar 
gemote,  not  only  of  his  shire,  but  of  the  kingdom."  (Hist. 
Anglo-Sax.,  vol.  ii,  p.  317,  Thorpe's  Trans.)  In  addition  to 
these  members,  an  ecclesiastical  element  entered  into  its 
composition,  consisting  of  archbishops,  bishops,  and  abbots. 
Its  judicial  functions  have  been  already  described.  The 
general  powers  of  this  council,  as  abridged  from  Kemble, 
were  as  follows. 

1st.  They  possessed  a  consultative  voice,  and  a  right  to  con- 
sider every  public  act,  which  could  be  authorized  by  the  king. 

2d.  They  deliberated  upon  new  laws  which  \vere  to  be 
added  to  the  existing  folk-right,  and  which  were  then  pro- 
mulgated by  their  o\va  and  the  king's  authority. 


THE   WITENA-GEMOTE — FKANK-PLEDGE.  235 

3d.  They  made  alliances  and  treaties  of  peace. 

4tli.  To  them  belonged  the  dnty  of  electing  the  king. 

6th.  They  had  the  power  to  depose  the  king,  if  his  goy- 
ernment  was  not  for  the  benefit  of  the  people. 

6th.  In  connection  with  the  king,  they  appointed  pre- 
lates to  vacant  sees. 

7th.  They  regnhited  ecclesiastical  affairs. 

8th.  They  levied  taxes  for  the  pnblic  service. 

9th.  They  raised  land  and  sea  forces  when  required. 

10th.  They  had  the  power  of  recommending  and  assent- 
ing to  the  grants  of  land,  and  of  permitting  tlie  conversion 
of  folk-land  into  boc-land. 

11th.  They  possessed  authority  to  adjudge  the  lands  o+ 
offenders  and  intestates  to  be  forfeited  to  the  crown. 

12th.  They  acted  as  supreme  court  of  justice  both  in 
criminal  and  civil  matters. 

§  399.  4.  Frank  Pledge. — The  institution  which  pre- 
sents the  Anglo-Saxon  civilization  in  the  most  striking  light, 
was  that  of  Frank-pledge,  or  "  Freeborgh."  This  was  a 
species  of  internal  or  domestic  police,  by  which  the  majority 
of  free  citizens,  whether  noble  or  common,  were  charged 
with  a  responsibility,  not  only  for  themselves,  but  also  for 
the  behavior  of  certain  of  their  fellows.  It  did  not  create 
the  citizen's  duty  toward  his  neighbor  and  toward  the  state, 
but  was  only  a  means  of  enforcing  that  duty.  Frank-pledge 
was  divided  into  two  branches. 

§  400.  1st.  It  included  that  personal  liability  of  a  supe- 
rior, which  made  him  the  surety  ("  borh  ")  for  his  vassals 
and  dependents.  Not  only  was  every  lord  burdened  with  a 
responsibility  for  his  tenants  and  retainers,  but  every  head 
of  a  family  must  protect  and  answer  for  those  in  his 
"  mund,"  his  wife,  children,  and  slaves.  Tlie  lord  was 
obliged  to  respond  for  the  offences  of  his  vassals  and  retain- 
ers, that  is,  he  must  see  that  they  were  brought  to  justice. 
If  a  vassal  accused  of  crime  should  abscond,  his  superior 
forfeited  the  fine  to  the  king.     If  he  himself  was  suspected 


236  THE    A17GL0-SAX0NS. 

of  conniving  at  the  offence,  or  at  tlie  escape  of  the  offender, 
he  was  forced  to  clear  himself  by  his  own  oath  and  that  of 
five  other  thegns  as  compurgators. 

§  401.  2d.  The  second  species  was  the  collective  Frank- 
pledge, enforced  by  means  of  the  tythings.  The  object  of 
these  small  conimunities  was,  that  each  man  should  be  in 
pledge  or  surety  (borh),  as  well  to  his  fellows  as  to  the 
state.  As  each  tything  was  composed  of  a  small  number  of 
members,  neighbors  to  each  other,  it  was  possible  that  each 
individual  should  be  under  the  constant  and  close  scrutiny 
and  espial  of  the  rest  of  the  association.  Thus  all  the  indi- 
viduals united  in  a  single  tything  were  joined  together  by  a 
bond  of  common  interest  and  common  fear  ;  they  were,  in  a 
measure,  isolated  from  the  rest  of  the  state ;  they  were 
bound  to  present  their  fellows,  if  charged  with  an  offence, 
before  the  court ;  they  were  to  hold  the  criminal  to  answer ; 
their  first  duty  was  to  produce  him  if  he  could  be  found  ; 
they  were  to  clear  him  of  the  charge,  if  possible,  by  oath, 
and  to  aid  in  paying  his  fine  if  declared  guilty  ;  if  he  fled, 
they  must  purge  themselves  of  all  participation,  as  well  in 
the  crime  as  in  the  escape,  by  their  oaths,  or  even  must  pay 
the  fine  adjudged  against  him  ;  they  received  a  portion  of 
the  compensation  for  his  death  ;  they  were  his  natm'al  com- 
purgators or  witnesses. 

§  402.  I  have  already  said  that  the  tythings  were  assem- 
blages of  free  men  only.  The  entire  community,  with  re- 
spect to  the  institution  of  Frank-pledge,  was  separated  into 
three  general  classes,  1st.  The  archbishops,  bishops,  ab- 
bots, thegns,  and  other  lords,  who,  as  superiors,  having 
large  estates  peopled  by  their  vassals  or  retainers,  were  an- 
swerable for  these  dependents,  and  were  not  included  in  any 
tything,  and  consequently  were  not  burdened  by  the  re- 
straints of  the  collective  suretyship,  but  were  pledges  for 
others,  their  inferiors.  2d.  A  class,  of  individuals  who  were 
not  pledges  for  others  nor  yet  for  themselves,  but  escaped 
the  espionage  of  the  system,  including  priests,  women,  and 


THE   PUNISHMENT   OF   CRIMES.  237 

those  who,  though  not  lords,  possessed  a  freehold  or  absolute 
property  in  land,  sufficient  to  be  security  for  their  good  be- 
havior. 3d.  Those  enrolled  in  ty things,  who  were  surety 
for  each  other.  As  the  state  relied  so  entirely  on  this  insti- 
tution to  enforce  obedience  to  the  laws,  and  give  protection 
to  the  lives,  persons,  and  property  of  its  citizens,  it  required, 
with  the  most  scrupulous  care,  .that  all  free  persons,  not  in- 
cluded in  either  of  the  first  two  classes,  should  be  joined  to 
some  ty  thing.  Any  failure  on  the  part  of  one  of  these  as- 
sociations to  enrol  a  new  comer,  was  visited  by  fine. 

§  403.  5.  The  Prevention  and  Punishment  of  Crimes. 
To  attempt  more  than  a  general  outline  of  this  subject  would 
lead  me  into  a  minute  and  unnecessary  detail.  The  prin- 
ciple was  fundamental,  not  only  among  the  Anglo-Saxons, 
but  among  the  Germanic  nations  of  the  continent,  that  al- 
most all  ofi"ences  against  person,  property,  or  life,  were  pun- 
ished by  pecuniary  mulcts.  The  Anglo-Saxon  state  was  far 
enough  advanced  in  civilization  to  recognize  the  truth  that 
a  crime  is  not  only  an  invasion  of  the  rights  of  the  injured 
person,  but  also  of  the  sovereignty  of  the  State.  It  there- 
fore provided  two  species  of  fines  ;  one  the  "  Wehr,"  award- 
ed to  the  sufferer,  or  to  the  relations  of  a  person  violently 
killed  ;  the  other,  mider  the  generic  name  of  the  "  Wite," 
to  be  paid  to  the  state,  or  to  the  official  in- whose  jurisdic- 
tion the  crime  was  committed.  "  Wehr "  was,  then,  a 
compensation  for  an  injury ;  "  wite  "  was,  in  modern  lan- 
guage, a  fine,  and  varied  with  the  rank  and  importance  of 
the  person  to  whom  it  was  due.  Connected  with  this,  and 
modifying  its  application,  was  another  no  less  fundamental 
principle,  that  the  state  did  not  regard  the  lives  and  persons 
of  all  individuals  as  of  equal  consequence,  but  annexed  a 
different  value  to  each,  according  to  their  status  or  rank  in 
society.  The  compensation  for  the  hfe  of  a  king  was  the 
highest  on  the  scale ;  following  which  was  that  of  exalted 
ecclesiastics  like  archbishops,  and  important  officers  like 
ealdormen  ;  inferior  to  these  was  that  of  eorls  and  thegns  ; 


238  THE    AXGLO-SAXOXS. 

and  lowest  of  all  was  that  of  the  ceoi-ls.  The  fines  for  in^ 
juries  not  destructive  of  life,  but  afieeting  the  person,  fol- 
lowed the  same  gradation.  It  would  be  useless  to  detail  the 
various  fines  apportioned  to  particular  oflfences.  Everj 
possible  act  of  violence  had  its  appropriate  compensation, 
and  the  greater  part  of  the  ancient  codes  is  occupied  with  a 
careful  and  often  ludicrous  minuteness  of  specification  of 
illegal  trespasses,  and  their  accompanying  fines. 

If  the  criminal  appeared,  and  was  tried  and  condemned, 
the  "  wehr  "  and  the  "  wite  "  were  payable  out  of  his  own 
property.  In  case  of  his  absconding,  his  relations  or  his 
tythings  were  responsible  for  the  mulct.  Tlie  relations  of 
the  person  slain  received  the  whole  wehrgyld  annexed  to 
his  rank  in  the  community. 

§  40i.  Crimes  were  divided  into  two  classes :  1st.  The 
bote-loss  or  inexpiable,  for  which  death  was  inflicted  without 
any  remission.  In  this  class  were  included  treason,  deser- 
tion of  the  standard  of  one's  lord,  open  theft  or  rapine, 
housebreaking,  and  murder,  as  distinguished  from  man- 
slaughter. 2d.  Those  for  which  the  offender  might  redeem 
himself  by  the  payment  of  the  stated  penalties.  A  speci- 
fied time  was  allowed  in  which  this  payment  could  be 
made.  According  to  Lappenburg,  the  order  of  satisfying 
the  several  demands  in  case  of  homicide  was  as  follows  :  1st, 
the  king's  "  mund,"  or  fine  for  the  breach  of  the  king's  pro- 
tection ;  2d,  the  "  man-bote,"  or  indemnity  to  the  lord  of 
the  slain ;  the  amount  of  which  was  regulated  by  that  of 
the  "  wehr ; "  3d,  the  "  fyht-wite,"  due  to  the  crown  for  the 
breach  of  the  peace,  and  lastly,  the  "  wehrgyld." 

§  405.  Two  methods  were  permitted  by  which  a  rude 
species  of  punishment  might  be  inflicted  upon  a  criminal. 
The  personal  vengeance  of  the  injured  party  and  his  rela- 
tives against  the  trespasser  and  his  kindred,  was  the  means 
of  enforcing  a  summary  justice  in  the  one  case ;  the  slower 
but  more  regular  judicial  process  was  resorted  to  in  the 
other.     The  first  was  termed  the  "  feud,"  or  private  war- 


THE   PUNISHMENT   OF   CRIMINALS.  280 

fare.  When  blood  had  been  shed,  the  relatives  of  the  slain 
could  pursue  and  put  to  death  the  slayer ;  or,  if  he  had  es- 
caped to  his  own  dwelling,  they  might  declare  hostilities 
against  him,  which  was  termed  "  raising  the  feud."  In 
case  a  "  ceorl "  had  killed  a  noble,  the  death  of  six  of  his 
relatives  was  alone  sufficient  to  make  reparation.  Tliis 
license  certainly  marked  an  exceedingly  savage  social  state, 
but  it  seems  to  have  been  common  among  all  the  Germanic 
tribes,  and  was  restrained  by  certain  regulations,  which, 
howevtjr,  were  doubtless  often  broken  through  in  the  ardor 
of  family  enmities. 

§  406.  "When  a  capital  offence,  such  as  open  theft,  had 
been  committed  in  the  day,  and  certain  evidence  of  the 
crime  was  found  upon  him,  the  offender  might  be  put  to 
death  without  any  form  of  trial.  But  this  punishment  must 
be  inflicted  immediately  ;  the  intervention  of  a  single  night 
made  more  solemn  and  orderly  proceedings  necessary.  This 
right  of  summary  punishment  belonging  to  a  manor  or  do- 
main was  termed  "  Infang-tliief." 

§  407.  When  a  judicial  investigation  was  necessary,  the 
criminal  might  be  formally  charged  with  his  offence  in  three 
modes :  1st.  By  the  presentment  of  the  hundred  through 
the  action  of  twelve  of  its  chief  citizens,  who  with  the  gerefa 
were  sworn  not  to  accuse  an  innocent  person,  or  conceal  any 
crime.  In  this  form  of  proceeding,  we  have  the  plain  origin 
of  our  grand  juries.  2d.  By  the  presentment  of  three  or 
four  men  of  the  neighborhood  or  township  ;  3d.  By  the  in- 
jured party  himself,  who  was  sworn  not  to  act  from  malice, 
and  his  oath  required  the  confirmation  of  seven  compurgators. 

§  408.  The  charge  having  been  formally  presented  to 
the  court,  the  first  step  was  to  secure  the  attendance  of  the 
suspected  culprit,  which  was  effected  through  the  institution 
of  Frank-pledge.  Should  he  fail,  however,  to  appear  and 
answer  the  accusation,  the  pecuniary  penalty  fell  upon  his 
relations,  or,  in  want  of  them,  upon  those  who  were  his 
"  borh  "  or  surety. 


240  THE   ANGLO-SAXONS. 

§  409.  On  the  trial,  as  has  already  been  described,  no 
evidence,  in  any  true  sense  of  the  term,  was  introduced  ;  no 
attempt  was  made  to  examine  the  facts,  or  weigh  the  prob- 
abilities ;  the  sole  reliance  was  upon  compurgation  and  the 
ordeaL  In  this  also  the  rank  of  the  accused  modified  the 
severity  of  the  scrutiny.  The  ojath  of  one  noble  was  equiv- 
alent to  that  of  six  ceorls.  If  the  culprit  were  a  ceorl,  he 
must  first  call  upon  his  lord  to  testify  whether  he  had  been 
guilty  of  crime  before  the  present  charge.  When  the  result 
of  this  enquiry  was  favorable,  the  defendant  could  clear 
himself  by  simple  compurgation  or  simple  ordeal.  By  the 
first,  the  oaths  of  a  proper  number  of  his  fellows  must  sup- 
port his  innocence  ;  by  the  second,  he  plunged  his  hand  into 
boiling  water  up  to  the  wrist,  or  carried  a  hot  ii'on  in  his 
naked  palm  nine  paces.  If  these  oaths  were  procured,  or 
if  the  ordeal  resulted  in  no  serious  injury,  he  was  acquitted. 
"When,  however,  the  testimony  of  his  lord  marked  him  as  a 
man  of  doubtful  character,  the  compurgation  was  tripled 
in  the  number  of  oaths,  and  the  ordeal,  in  the  severity  of  its 
infliction.  If  the  result  was  unfavorable,  the  accused  was 
condemned,  and  must  redeem  himself  by  the  payment  of 
the  appointed  fines  to  the  state,  and  compensation  to  the 
injured  party,  or  his  relations  or  tythings. 

§  410.  I  have  thus  given  a  very  general  outline  of  the 
more  important  Anglo-Saxon  institutions.  To  notice  the 
minuter  variations,  special  provisions,  and  occasional 
changes,  would  lead  me  into  too  wide  a  discussion,  and 
would  not  aid  the  purposes  of  so  elementary  a  work  as  this. 
Enough  has  been  said,  liowever,  to  indicate  those  of  our 
own  legal  ideas  and  forms  which  have  a  Saxon  origin. 

§  411.  Prominent  among  these  is  that  most  important, 
and  to  us  sacred  principle  of  local  self  government.  This 
element  lay  at  the  foundation  of  the  whole  Saxon  polity.  It 
has  been  preserved  in  the  English  shires  and  ancient  muni- 
cipal corporations  or  boroughs  with  their  immemorial  priv- 
ileges.    In  many  of  the  American  states  it  is  guarded  with 


PRINCIPLES  DERIVED  BY  US  FROM  THE  SAXONS.    241 

even  more  jealousy  than  in  tlie  mother  country.  The  New 
England  and  New  York  divisions  of  towns,  each  with  its 
own  officers,  and  stated  convocations  of  citizens,  and  of 
counties,  each  with  a  local  representative  assembly  legislat- 
ing for  much  that  concerns  the  welfare  of  the  district,  and 
a  court  possessing  a  jurisdiction  coextensive  with  the  terri- 
torial limits,  embody  with  much  simplicity  and  purity  the 
essential  idea  of  the  Saxon  commonwealth. 

§  412.  In  the  witena-gemote,  we  may  perceive  the  ear- 
liest phase  of  that  body,  which,  through  a  long  succession 
of  changes,  finally  became  the  English  parliament  and 
American  legislature.  It  must  not  be  supposed  that  the 
Saxon  council  bore  any  resemblance  in  fonn  to  these  later 
assemblies.  It  was  not  elective  ;  it  was  not  strictly  repre- 
sentative ;  but  it  had  a  right  to  unite  with  the  king  in  con- 
trolling the  administration  of  the  national  affairs. 

§  413.  From  the  constitution  of  the  Saxon  courts,  formed 
of  good  and  true  citizens,  who  took  a  part  in  the  decision  of 
all  legal  controversies,  we  derive  the  idea,  the  fruitful  germ 
of  our  trial  by  jury. 

§  414.  In  the  tythings  and  mutual  and  class  suretyship, 
we  have  the  origin  of  our  practice  of  requiring  bail  to  be 
given  for  the  appearance  of  offenders  charged  with  crimes. 
The  collective  Frank-pledge  has  long  passed  away,  but  the 
principle  of  relying  on  one  person  as  a  pledge  for  the  obe- 
dience of  another  is  yet  preserved  by  us,  and  is  in  constant 
use. 

§  415.  To  the  Saxon  system  of  compensation  to  the 
suffering  party  as  the  universal  form  of  penalty  for  personal 
trespasses,  we  must  refer  as  the  origin  of  our  method  of  in- 
flicting penalties  for  most  private  injuries  to  person  and 
property,  by  pecuniary  damages. 

§  416.  Finally,  from  the  whole  spirit  of  the  Anglo-Saxon 
race,  as  shown  through  their  laws  and  institutions,  we  have 
inherited  our  own  native  self-reliance,  and  love  of  personal 
liberty. 

16 


CHAPTEE  II. 


THE   FEUDAL   STSTE-M 


§  417.  Another  one  of  the  sources  which  have  contri- 
buted  much  to  form  the  composite  structm'e  of  English  and 
American  law,  is  the  feudal  system.  The  state  of  society 
which  grew  up  under  this  form  of  civilization  was  certainly 
picturesque.  Its  princely  estates,  its  massive  castles,  its 
rugged  barons,  its  chivalry  and  knight  errantry,  have  all 
afforded  an  ample  field  for  the  poet,  the  novelist,  and  even 
the  historian  ;  but  under  these  outside  appearances,  there  lie 
vast  and  firm  strata  of  legal  institutions  and  principles, 
which  must  carefully  be  dug  over  and  explored  by  the  stu- 
dent who  would  understand  the  familiar  law  of  the  nine- 
teenth century.  Castles  are  moss-grown  and  crumbling  in 
the  dust,  manors  are  built  over  with  cities  and  threaded 
with  railways,  chivalry  exjjired  under  the  remorseless  sar- 
casm of  Cervantes,  but  the  simple  deed  by  which  the  entire 
title  to  an  American  farm  is  conveyed,  refers  back,  for  its 
complete  explanation,  to  the  time  when  all  these  institutions 
were  flourishing  in  their  full  vigor. 

§  418.  The  law  of  feuds  was  in  the  highest  degree  arbi- 
trary ;  it  had  no  basis  of  abstract  right ;  it  paid  little  heed 
to  the  requirements  of  justice.  It  was  an  unfolding  of  the 
national  customs  and  institutions  of  tribes,  barbarous  and 
wild  in  their  culture,  but  possessing  great  energy,  activity, 
courage,  and  the  power  of  developing  into  the  peoples  which 


GENERAL  CHARACTER  OF  FEUDALISM.         243 

are  now  the  very  flower  of  a  Christian  civilization.  The 
animating  spirit  of  feudalism,  both  as  shown  in  the  general 
structure  of  society,  and  in  the  legal  institutions  upon  which 
society  rested,  was  military.  The  rulers  and  leaders  in  the 
state  were  military  chieftains.  Every  person  of  gentle  birth 
Was  trained  to  arms.  All  forms  of  labor  and  handicraft 
were  rude  and  degrading,  and  left  to  those  who  occupied 
the  lowest  stations  in  social  order.  The  only  property  which 
the  law  cared  for  was  land.  Personal  property  was  little  in 
amount,  and  less  in  value.  The  feudal  law  then,  as  a  system 
of  municipal  regulations,  is  entirely  confined  to  what  the 
Roman  jurisprudence  denominated  immoveables.  Follow- 
ing its  animating  spirit,  the  system  fettered  landed  property 
with  an  intricate  network  of  arbitrary  rules,  which  were 
designed  and  well  adapted  to  preserve  wealth  and  power  in 
the  hands  of  a  few ;  which  were  restraints  upon  transfers  of 
the  soil  from  one  occupant  or  holder  to  another ;  which  were 
a  virtual  destruction  of  all  trade,  and  commerce,  and  spirit 
of  enterprise  ;  and  which  drew  deep,  and  broad,  and  lasting, 
the  lines  of  distinction  between  the  various  classes  and  orders 
of  society  in  the  state. 

§  419.  As  will  appear  in  the  course  of  this  chapter,  these 
restrictions  upon  the  free  life  of  the  nation,  which  were  so 
great  when  the  system  was  most  flourishing,  began  to  grow 
too  grievous  to  be  borne,  and  they  necessarily  yielded  to  the 
demands  of  a  steadily  advancing  culture,  and  have  virtually 
long  passed  away ;  but  they  have  left  an  impress  upon  our 
municipal  law,  which  cannot  be  effaced,  as  long  as  we  feel 
the  influence  of  our  past  history.  One  of  these  effects  is 
the  marked  distinction  in  the  law  between  real  property  and 
personal  property.  When  Lord  Coke  wrote  his  Institutes 
of  the  Laws  of  England,  between  the  years  IGOO  and  1630, 
the  distinction  was  preserved  in  all  its  integrity.  At  the 
time  of  Sir  William  Blackstone,  the  law  had  yielded  a  little 
in  its  preference  for,  and  privileges  allowed  to,  the  owners  of 
the  land ;  but  still  moveables  and  immoveables  were  regulated 


244  THE   FEUDAL    SYSTEM. 

bj  a  veiy  different  code.  In  the  United  States,  this  distinc 
tion  is  in  a  great  measure  broken  down ;  but  its  traces  are 
plainly  visible  in  the  rule  of  law  appointing  a  different  suc- 
cession to  the  lands  and  chattels  of  a  deceased  person ;  in  re- 
quiring a  transfer  of  land  to  be  evidenced  by  a  more  solemn 
instrument  under  seal ;  in  subjecting  the  personal  property 
first  to  the  duty  of  satisfying  the  debts,  either  of  a  living 
judgment  debtor,  or  of  a  person  deceased,  whose  estate  must 
be  administered  by  the  law.  The  Koman  law  knew  no  such 
distinction  between  these  two  classes  of  property,  and  its 
principles,  after  being  for  many  centuries  displaced  by  the 
law  of  feuds,  have  gradually  reasserted  themselves,  until  in 
America  they  are  almost  triumphant. 

§  420.  The  general  tone,  then,  of  the  influence  which  the 
feudal  law  has  exerted  upon  the  jurisprudence  of  European 
countries,  has  been  to  impress  a  distinctive  character  upon 
real  projjerty ;  to  withdraw  it  from  trade,  commerce  and  ex- 
change, by  hindering  its  transfer ;  to  retain  it  in  the  hands  of 
a  comparative  few,  by  separating  the  absolute  ownership 
from  the  use  and  occupancy,  and  at  the  same  time  to  depress 
the  value  and  estimation  of  personal  projjerty.  All  these 
peculiarities  were  and  are  antagonistic  to  the  general  dift'u- 
sion  of  wealth,  to  the  progi*ess  of  trade  and  commerce,  and 
to  all  the  material  development  and  advance  of  the  present 
civilization. 

§  421.  In  the  course  of  this  chapter,  I  shall  sketch  the 
history  of  the  rise  and  progress  of  the  feudal  system ;  explain 
its  prominent  features  and  regulations  aftecting  the  law  of 
real  property,  and  the  status  of  the  individual ;  trace  more 
in  detail  its  influence  and  effects  upon  succeeding  and 
modern  jurisprudence,  and  set  forth  the  causes  which  led  to 
its  decline  and  abandonment. 

§  422.  The  feudal  system  had  its  origin  among  those 
barbaiian  nations  which  spread  over  a  great  part  of  Europe, 
and  overthrew  the  Roman  dominion.  During  the  sixth  cen- 
tury, these  invasions  had  become  so  extensive  that  little  re- 


ORIGIN   OF   THE   FEUDAL    SYSTEM.  245 

raained  of  the  western  empire.  Spain  was  held  by  the 
Visigoths  and  the  Snevi.  The  Franks  and  the  Burgundians 
had  invaded  Ganl,  and  the  former  tribe,  being  the  more 
powerful,  had  extended  themselves  over  its  territory,  and 
gave  to  it  the  name  of  France.  The  Saxons  had  overrun 
England,  and  the  Lombards  had  penetrated  to  Northern 
Italy,  and  there  founded  a  kingdom.  These  invaders  were 
distinct  nations,  spoke  different  languages,  followed  different 
leaders ;  yet  they  had  the  same  ethnic  origin  ;  they  wer^ 
nearly  related  in  the  same  family  of  tribes. 

§  423.  The  researches  of  modern  ethnology  and  com 
parative  philology  have  established,  beyond  a  doubt,  that 
these  several  nations,  issuing  out  from  the  wilds  and  woodp 
of  Germany,  were  portions  of  great  Indo-Germanic  migra- 
tion, which  had,  at  vast  intervals  of  time,  thrown  wave 
after  wave  of  peoples,  from  Central  Asia,  across  the  conti- 
nent westwardly  to  the  shores  of  the  Atlantic.  Whatever 
may  have  been  their  external  variations  of  manners,  laws, 
and  languages,  there  ran  through  all  a  connecting  tie, 
which  betrayed  their  common  origin  and  close  relationship. 
With  great  outward  differences,  we  may  assume  that  their 
national  policy  and  institutions  were  rooted  in  the  same 
ethnic  customs  and  characteristics. 

§  424.  It  is  beyorid  dispute  that  the  feudal  system  had 
its  origin,  and  was  brought  to  perfection,  among  these  nations 
which  overthrew  the  Roman  empire.  It  was  found  among 
the  Lombards  in  Italy,  and  the  Franks  in  Gaul ;  among  the 
Visigoths  in  Spain,  and  those  Germans  who  did  not  join  the 
hordes  who  poured  out  upon  the  Eoman  pro^-inces.  The 
Northmen  or  Normans,  sweeping  down  from  the  shores  of 
Scandinavia,  and  partly  by  force,  partly  by  concession,  be- 
coming masters  of  the  district  of  Normandy,  brought  it  to 
a  high  degree  of  perfection.  We  have,  in  the  preceding 
chapter,  seen  the  essential  features  of  the  system  in  o]->eration 
among  the  Saxons  in  England  prior  to  the  Norman  conquest, 
although  among  them  the  elements  of  personal  individual 


246  THE   FEUDAL    SYSTEM. 

freedom  jf  the  citizens,  and  local  self  gcvernment,  had 
offered  a  more  successful  and  continued  resistance  to  the  en- 
croachments of  the  feudal  polity  upon  the  ancient  order  of 
things,  than  among  the  kindred  tribes  on  the  continent. 

§  425.  The  question  which  first  meets  us  is,  whence  was 
this  system,  so  extensive  and  so  unique,  derived;  what 
country  or  race  was  the  cradle  of  its  germinal  ideas  ? 

Sir  William  Blackstone  and  some  other  writers  whose 
historical  researches  were  not  profound,  represent  the  Teu- 
tonic nations  as  bringing  with  them,  in  their  resistless  march, 
the  feudal  policy  in  a  condition  fully  developed,  a  recognized 
part  of  their  national  customs,  and  imposing  it  upon  the 
conquered  provinces  of  the  Roman  empire.  This  supposi- 
tion, however,  is  plainly  erroneous.  The  investigations  of 
modern  historical  students,  who  have  had  access  to  records 
of  which  Sir  William  Blackstone  was  ignorant,  have  done 
much  to  dispel  the  clouds  whi(;h  hung  over  and  obscured  the 
national  life  of  Italy,  Gaul,  Spain  and  Britain,  during  the  few 
centuries  immediately  succeeding  the  barbarian  conquest. 

§  426.  The  general  result  of  this  examination,  laboriously 
made  by  the  most  careful  of  students  is,  that  the  Germanic 
nations  in  their  primitive  tribal  customs  and  institutions 
possessed  the  germs  of  the  feudal  system  in  an  undeveloi^ed 
state ;  that  the  settlement  of  these  peoples  upon  the  soil  of  the 
Roman  provinces  afforded  an  opportunity  for  these  seeds  to 
spring  up  and  grow ;  that  as  the  barbarism  of  the  invaders 
gradually  softened,  and  the  smaller  tribes  were  consolidated 
into  larger  nationalities,  the  new  circumstances  of  their  po- 
sition demanded  a  change  in  their  institutions,  which  was 
effected,  not  by  creating  anything  entirely  new,  but  by  ex- 
panding and  adding  to  that  already  familiar.  After  the 
lapse  of  several  centuries,  society  became  completely  reor- 
ganized, and  land,  the  important  species  of  property  and 
chief  source  of  wealthy  became  subject  to  the  regulations  of 
the  feudal  regime.  This  account  of  the  rise  of  the  system 
would  give  it  a  strict  ethnic  origin  among  the   Teutonic 


ORIGIN   OF   THE   FEUDAL    SYSTEM.  247 

tribes,  and  a  growth  quickened  and  aided  by  tbe  require 
ments  of  new  circumstances,  and  particularly  by  tbe  demands 
of  a  civilization  military  in  its  character. 

§  427.  Sir  Francis  Palgrave,  in  his  great  work  on  the 
Rise  and  Progress  of  the  English  Commonwealth,  has  ad- 
vanced a  theory,  which  has  been  adopted  and  dogmatically 
stated  by  Mr.  Spence  in  his  very  able  Treatise  of  the  Equi- 
table Jurisdiction  of  the  English  Court  of  Chancery,  that 
the  rules  of  landed  possessions  which  have  been  supposed 
to  be  peculiar  to  the  feudal  system,  and  to  form  its  most  im- 
portant element  in  moulding  the  subsequent  law  of  real 
property,  were  neither  invented  by  the  Germanic  nations, 
nor  historically  developed  by  them  from  their  tribal  customs, 
but  were  borrowed  by  them  from  the  Roman  law,  which 
prevailed  in  the  provinces  prior  to  the  invasion,  and  added 
to  their  own  rude  legislation.  The  work  of  Sir  F.  Palgrave 
is  one  of  vast  learning  and  of  great  authority,  and  that  of 
Mr,  Spence  is  undoubtedly  the  most  valuable  contribution 
to  mere  legal  history  ever  made  by  an  English  lawyer ;  yet 
I  am  strongly  of  the  opinion,  and  in  this  am  confirmed  by 
some  of  the  most  able  modern  historians,  that  their  theoiy 
is  a  generalization  from  an  insufiicient  number  of  facts ; 
that  it  is  founded  upon  merely  incidental  resemblances, 
without  a  due  consideration  whether  these  resemblances  are 
anything  more  than  casual,  whether  they  have  ^ny  neces- 
sar}^  bond  of  origin  and  result  connecting  them  ;  and  that  it 
is  opposed  to  all  the  analogies  and  facts  of  history. 

§  428.  The  purpose  and  limits  of  the  present  work  do 
not  require  nor  permit  a  careful  discussion  of  the  question 
thus  stated.  There  are  some  considerations,  however,  which 
will  aid  in  reaching  a  coiTcct  conclusion,  and  which  seem  to 
incline  strongly  against  this  latter  hypothesis. 

There  can  be  no  greater  error  in  historical  investigations, 
than  the  conclusion  that,  because  of  a  resemblance  between 
institutions  of  two  different  nations,  not  contemporaneous, 
the  later  in  time  has  borrowed  from  the  former.     Many  of 


248  THE   FEUDAL    SYSTEM. 

these  resemblances  are  entirely  casual ;  many  such  institu- 
tions and  customs  are  those  which  seem  to  be  the  natural 
product  of  barbarism,  and  to  be  common  among  people 
widely  separated  in  tiuje  and  space.  Thus  the  earliest 
stages  of  all  national  life  and  progress  are  distinguished  by 
an  attachment  to,  and  employment  of,  arbitrary  forms.  We 
shall  see  in  the  succeeding  chapter  that,  in  the  semi-barbarous 
periods  of  the  Roman  commonwealth,  certain  species  of 
property  were  marked  by  very  peculiar  and  arbitrary  charac- 
teristics, that  their  transfer  could  only  be  made  in  a  manner 
highly  artificial  and  symbolic,  in  the  presence  of  witnesses, 
and  before  a  public  officer.  Our  examination  of  the  Saxon 
laws  has  shown  a  custom  quite  analogous  prevalent  among 
them ;  the  sales  of  goods  and  chattels  must  be  made  in  pub- 
lic, in  the  presence  of  witnesses  and  before  officers ;  the 
conveyance  of  lands  was  symbolized  by  the  delivery  of  a 
handful  of  soil  or  such  like  emblem.  It  would  be  an  ex- 
travagance, however,  to  infer  from  this  plain  similarity  that 
the  Saxons  had  borrowed  this  article  of  their  customary  or 
statute  law  from  the  ancient  Romans.  Both  obsei-vances 
were  the  natural  and  inevitable  birth  of  barbarism. 

§  429.  Now  the  essential  feature  of  the  feudal  regula- 
tions of  landed  property,  was,  that  the  absolute  ownership 
resided  in  one  person,  the  lord,  while  the  actual  occupancy 
and  possesion  and  use  of  the  proceeds  and  fruits,  and  there- 
fore a  subordinate  kind  of  ownership,  was  enjoyed  by  an- 
other, the  tenant.  Coupled  with  this  principle  of  distribut- 
ing the  ownership,  was  another,  which  defined  the  peculiar 
relation  between  the  individuals  who  held  these  two  rights, 
which  created  a  military  tie  of  superiority  on  the  one  side, 
and  dependence  on  the  other,  of  protection  and  faith.  The 
latter  is  confessedly  the  outgrowth  of  primitive  Teutonic 
customs ;  the  former  bore  some  likeness  to  one  method  of 
holding  lands  among  the  Romans,  but  the  similarity  extends 
further,  and  may  be  detected  even  among  tlie  institutions 
of  some  Asiatic  states.     The  writers  mentioned  have  been 


OKIGESr   OF   THE   FEUDAL   SYSTEM.  24y 

struck  by  this  resemblance,  but  seem  to  have  overlooked 
the  fact  that  the  principle  of  dividing  the  ownership  of  the 
soil  is  one  likely  to  be  found  in  some  form  among  the  cus- 
toms of  all  nations  which  prize  the  possession  of  lands.  In 
truth,  these  two  ideas  in  the  feudal  system,  of  the  tie  be- 
tween the  superior  and  the  vassal,  and  of  the  distinct  right 
of  property  in  the  land  which  belonged  to  each,  should  not 
be  separated.  The  personal  relation  was  pm-ely  and  primi- 
tively Germanic  ;  the  other,  in  the  progress  of  time,  by  the 
consolidation  of  the  people,  by  the  necessity  of  providing 
strength  for  military  enterprises,  by  the  gradual  aggrandize- 
ment of  the  nobility,  was  the  natural  product  of  this  abeady 
existing  relation. 

§  430.  The  fact  that  these  essential  elements  of  the  feud- 
al polity  were  found  among  those  Germanic  tribes  not  di- 
rectly in  contact  with  the  Roman  civilization  as  well  as 
those  who  were,  adds  much  to  the  probability  of  the  Ger- 
manic origin  of  the  whole  system.  "We  have  already  seen 
that  it  had  commenced  and  considerably  advanced  among 
the  Saxons  in  England,  who  certainly  were  not  brought 
into  contact  with  the  remains  of  the  Roman  provincial  leg- 
islation in  a  sufficient  degree  to  have  exerted  any  decided 
influence  on  their  national  policy.  The  ecclesiastics  had 
indeed  become  propagandists  of  the  ideas  of  the  now  fallen 
empire,  but  their  labors  had  been  confined  to  the  enlarging 
the  powers  of  the  king,  to  the  clothing  him  with  the  attri- 
butes of  the  Roman  emperor,  and  had  not  extended  to  the 
subverting  and  overturning  the  ancient  laws  of  the  king- 
dom. This  point  will  be  more  fully  brought  out  in  the  suc- 
ceeding chapter,  when  I  come  to  speak  of  the  history  of  the 
Roman  law  during  the  middle  ages.  It  is  enough  now  to 
say  that  in  those  parts  of  France  where  the  Roman  law  re- 
tained its  greatest  influence,  where  the  people  were  chiefly 
of  Roman  descent,  the  feudal  regime  was  always  the  weak- 
est ;  there  the  larger  portion  of  the  landed  prof  erty  was  not 
for  a  long  time  brought  under  its  restrictions  ;  while  in  the 


250  THE   FEUDAL    SYSTEM. 

northern  regions  of  tlie  kingdom,  from  wliicli  the  Romans 
had  been  almost  entirely  driven,  and  their  places  occupied 
bj  the  invading  Franks,  and  where  their  law  had  yielded 
completely  to  the  Germanic  customs,  the  feudal  system 
flourished  in  its  greatest  strength  and  Tigor.  It  seems  to 
me  that  this  historical  fact  is  entirely  inconsistent  with  the 
assumption  of  a  Roman  origin  for  the  feudal  regulations  of 
landed  property. 

§  431.  To  this  may  be  added  an  argument  drawn  from 
ethnological  science.  The  prevalence  of  the  feudal  policy 
as  a  part  of  the  institutions  and  laws  among  so  many  na- 
tions, separated,  indeed,  in  government,  but  one  in  race, 
strongly  indicates  that  the  system  had  its  roots  in  their  com- 
mon race-origin.  Xo  fact  is  more  palpable  in  history  than 
that  the  characteristics  of  race,  by  some  means  stamped  in- 
delibly into  the  individual  and  upon  the  common  brother- 
hood, are  preserved,  modified,  perhaps,  but  not  obliterated, 
through  centuries  of  change,  through  the  rise  and  overthrow 
of  governments  and  empires,  through  the  progress  from  bar- 
barism to  the  highest  state  of  civilization.  As  languages 
indicate  their  descent  through  the  most  radical  convulsions 
of  the  state  and  the  people,  so  do  the  tribal  institutions  and 
customs  perpetuate  themselves  from  generation  to  genera- 
tion. Thus  the  prolific  germ  which  can  be  traced  back  into 
the  swamps  and  forests  of  Germany  among  the  fierce  and 
independent  Saxons,  has  developed  a  growth,  which,  sur- 
viving the  invasions  of  Danes  and  Xormans,  has  given  to 
England  its  free  constitution,  and  is  working  out  its  perfect 
fruit  in  the  individual  liberty  and  local  governments  of  the 
United  States.  It  would  seem,  then,  to  be  in  accordance 
with  the  analogies  of  history  to  infer  that  the  feudal  civili- 
zation, with  its  peculiar  class  divisions  and  relations  and 
rules  of  temtorial  j^roparty,  was  based  upon  a  foundation 
of  race  or  tribal  customs  common  to  all  the  barbarian  peo- 
ples who  established  the  western  nationalities  of  Europe. 

§  432.  The  argument  from  authority  i-,  entirely  opposed 


ORIGIN    OF   THE   FEUDAL    SYSTEM.  251 

to  the  theory  of  Sir  Francis  Palgrave.  The  conchisions  of 
Savigny,  in  his  exhaustive  History  of  the  Roman  Law  du- 
ring tlie  Middle  Ages,  all  tend  to  give  the  feudal  system  a 
Teutonic  origin.  He  sums  up  the  discussions  of  one  chap- 
ter with  these  propositions,  which  I  have  condensed.  The 
ancient  Germanic  constitution  comprised  three  classes  of 
persons,  the  noble,  the  free,  and  those  who  were  not  free. 
"When  the  Germans  established  themselves  on  the  soil  of 
the  Roman  empire,  the  Germanic  organization  continued  the 
same,  while  the  Romans  were  also  permitted  to  remain  as 
occupants  of  a  portion  of  the  territory.  After  the  lapse  of 
time,  the  personal  and  feudal  service  created  a  crowd  of 
new  relations,  which  gave  birth  to  new  names  for  classes  of 
nobles,  "  Anstrustiones  "  in  the  Frankish  empire,  "  Capi- 
taniei "  and  "  Yalvassores  "  in  Italy.  "Without  doubt  the 
germ  of  these  institutions  existed  already,  but  the  founding 
of  the  new  Germanic  states  hastened  and  favored  their  de- 
velopment. To  these  changes  in  the  state  of  persons  there 
responds  a  similar  change  in  the  territorial  property.  Ac- 
cording to  the  ancient  constitution,  absolute  property  was 
inseparable  from  the  status  of  a  freeman,  and  under  this  re- 
lation nobles  had  no  privileges.  But  the  feudal  regime  re- 
modelled society,  and  the  principle  of  ownership  partook 
of  the  alteration  in  the  condition  of  persons.  This  sum- 
mary has  reference  only  to  the  Germanic  nations  upon  the 
continent,  who  from  the  beginning  were  mingled  with  a 
large  element  of  Roman  provincials ;  but  it  entu'ely  agrees 
with  the  description  given  in  the  preceding  chapter,  of  tlie 
gradual  transfer  of  the  Saxon  free  nobles  by  birth,  into  the 
class  of  nobles  by  service,  and  the  partial  conversion  of  sim- 
ple freemen  into  the  state  of  vassalage  and  dependence 
upon  a  lord,  and  of  the  absolute  property  in  land — the 
"  alod  " — into  the  feudal  condition  of  an  ownership  subor- 
dinate to  the  rights  of  a  superior.  Since  the  publication  of 
Palgrave's  work,  his  positions,  which  I  have  mentioned, 
have  been  implicitly  combated   by  Mr.  Kemble,  and  di- 


252  THE   FEUDAL    SYSTEM. 

recti  J  and  successfully  attacked  by  Prof.  Lappeilburg,  in 
their  histories  of  the  Anglo-Saxons. 

§  433,  Whatever  may  have  been  its  national  and  historic 
source,  it  is  certain  that  the  feudal  system  is  found  firmly 
established  through  the  empire  of  Charlemagne  before  the 
year  800,  in  all  its  essential  features,  and  also  prevailed 
among  the  Saxons  in  Britain,  though  it  did  not  arrive  at  its 
maturity  and  fidl  development,  with  all  of  its  restrictions 
and  onerous  servitudes,  before  the  eleventh  century.  The 
ISTorman  invaders  of  England  under  William,  in  the  year 
1066,  brought  over  the  system  in  a  state  far  more  developed 
than  that  which  existed  among  the  Saxons,  and  established 
it  with  all  its  rigorous  strictness  throughout  their  new  pos- 
sessions, and  from  that  time  the  law  of  England  bears  the 
deep  impress  of  this  peculiar  policy. 

We  are  now  prepared  for  a  general  description  of  the  feud- 
al civilization,  and  regulations  affecting  land,  from  its  intro- 
duction, so  far  as  has  been  discovered  in  the  records  of  early 
times,  until  it  became  definitely  established  as  the  law  of 
tenures  in  England. 

§  434.  There  may  be  difi'erent  kinds  of  ownership  over 
landed  property.  In  one,  the  land  is  in  the  absolute  con- 
trol and  direction  of  the  owner  and  possessor.  In  other 
words,  the  right  to  the  soil,  and  to  the  profits  of  the  soil, 
meet  in  the  same  person.  He  possesses  the  dominnmi  di- 
rectum^ and  the  dominiwm  utile.  Land  thus  held  is  termed 
allodial.  We  have  seen  the  original  of  this  word  in  the 
"  alod  "  or  inheritance  of  the  primitive  Saxon.  Such  is  the 
character  of  the  ownership  of  real  property  in  the  United 
States,  and  it  is  the  simple,  natural,  and  just  method  of  di- 
viding up  the  territory  of  a  country  among  its  inhabitants. 
So  accustomed  are  we  to  this  species  of  proprietorship,  that 
we  can  hardly  conceive  of  any  other,  and  by  far  the  greatest 
difficulty  which  the  student  of  law  has  to  encounter,  is  in 
divesting  his  mind  of  the  preconceived  notion  of  the  neces- 
sity of  Buch  a  possession  and  dominion. 


FEUDAL   OWNERSHIP   OF   LANDS.  253 

§  435.  Tlie  who-e  feudal  policj,  so  far  as  it  was  a  system 
of  laws  regulating  real  property,  j)roceeded  upon  tlie  con- 
trary idea  that  the  absolute  ownership  of  land,  or  the  do- 
minium direckim^  was  in  one  man,  while  the  actual  posses- 
sion and  profitable  use,  or  dominiuTn  utile^  was  in  another. 
The  study  of  the  feudal  system  as  a  portion  of  legal  science, 
consists  in  explaining  this  double  ownership,  and  the  con- 
sequences to  each  party  which  flowed  from  it,  and  the  rules 
by  which  it  was  governed. 

We  are  now  to  inquire  how  this  peculiar  condition  of 
landed  property  grew  up  and  became  universal. 

§436.  .The  description  given  in  the  preceding  chapter 
of  the  primitive  social  order  among  the  Saxons,  and  of  the 
gradual  change  into  the  feudal  constitution,  by  the  develop- 
ment of  the  class  of  the  unfree,  will  apply  in  its  general  fea- 
tures to  the  Franks  in  Gaul,  and  to  the  other  Germanic  na- 
tions in  western  Europe.  With  them  there  were  three  an- 
cient classes,  the  noble,  the  free,  and  the  unfree  ;  the  nobles 
had  no  privileges  which  did  not  belong  to  the  simple  free 
men  ;  the  absolute  ownership  of  land  was  indispensable  to 
the  enjoyment  of  the  privileges  of  freemen.  But  in  the 
midst  of  this  ancient  order  of  freemen,  each  the  absolute 
owner  of  his  own  possession,  the  king  was  continually  draw- 
ing about  him  a  company  of  followers,  retainers,  and  de- 
pendents, whom  he  favored,  rewarded,  and  ennobled.  In 
the  process  of  time  these  nobles  by  service,  known  among 
the  Franks  as  Anstrustiones,  and  among  the  Lombards  as 
Yalvassores,  absorbed  into  their  ranks  the  primitive  nobles 
by  birth,  and  the  inferior  orders  of  society  passed  into  a  con- 
dition of  vassalage  to  them. 

§  437.  When  the  Roman  provinces  were  oveiTun  by  the 
Germans,  a  great  part  of  the  lands  were  seized  and  held  by 
the  conquerors.  With  the  private  municipal  law  of  the 
conquered,  it  was  no  part  of  the  policy  of  the  barbarian  in- 
vaders to  interfere.  In  this  they  differed  from  the  custom 
of  the  Romans.     When  the  latter  people  had  reduced  a  for- 


254  THE   FEUDAL    SYSTEM. 

eign  nation  to  subjection,  it  was  one  of  their  first  steps  to 
introduce  tlieir  jurisprudence  over  the  new  province.  The 
Franks  were  satisfied,  on  the  contrary,  with  leaving  the  old 
masters  as  thej  found  them ;  and  for  a  long  period  of  time 
the  conquered  Eomans  and  Gauls  and  the  conquering 
Franks  lived  side  bj  side,  the  one  governed  bj  the  refined 
laws  of  Rome,  the  other  by  the  rude  customs  of  Germany. 

§  438.  But  the  fierce  warriors  of  Clovis  would  not  be 
satisfied  without  a  large  portion  of  the  possessions  which 
they  had  wrested  from  their  former  owners.  These  lands 
were  partly  distributed  among  the  invaders,  and  a  large 
share  fell  to  the  king,  under  the  name  of  fiscs,  which  re- 
mained under  his  control,  similar  to  the  folkland  of  the 
Saxons.  Those  of  the  ancient  proprietors  who  retained 
their  property  or  portions  of  it,  held  it,  without  doubt,  as 
allodial  land,  according  to  the  old  law.  According  to  their 
ancient  and  familiar  customs,  the  allotments  distributed 
among  the  Frankish  freemen  and  nobles  were  received, 
held,  and  enjoyed  by  them  as  their  absolute  property. 
Many  writers  on  the  feudal  law,  and  among  them  Sir  "Wil- 
liam Blackstone,  represent  the  king  as  seizing  all  of  the 
lands  which  were  not  left  to  the  former  inhabitants,  as  his 
own,  over  which  he  assumed  the  complete  dominion,  and 
as  subsequently  granting  them  out  in  portions  to  his  mili- 
tary chieftains  and  followers.  If  this  were  the  fact,  it  would 
furnish  a  ready  and  complete  reason  for  the  feudal  rule  of 
law  in  England,  that  the  king  is  the  original  owner  of  all 
the  landed  possessions  in  the  kingdom.  But  the  researches 
of  those  who  have  studied  the  records  left  to  us  of  the  early 
polity  of  the  Franks,  show  conclusively  that  the  early 
Frankish  kings  possessed  no  such  power ;  that  they,  as  well 
as  others,  received  their  own  private  share  of  the  lands ; 
that  they  exercised  a  control  over  the  fiscs,  but  that  the 
greater  part  of  the  territory  was  divided  up  among  the  free 
warriors,  who  held  the  shares  as  their  own  inheritances. 

§  439.  The  king,  being  thus  in  possession  of  a   large 


OEIGIN   OF   FEUDAL   OWNERSHIP   OF   LANDS.  255 

quantity  of  land  scattered  throughout  the  realm,  had  the 
means  of  rewarding  the  faithful  retainers  with  whom  he 
was  gradually  surrounding  himself,  and  this  he  did,  by 
making  to  them  grants  of  land  under  the  name  of  benefices. 
Under  these  beneficial  grants,  we  find  the  first  historic 
traces  of  the  peculiar  characteristics  of  the  feudal  system. 
The  benefice  was  not  an  absolute  gift,  vesting  the  recipient 
with  the  ultimate  ownership  ;  that  still  remained  in  the 
king,  and  the  grant  was  liable  to  be  revoked  at  any  disloyal 
or  hostile  act  of  the  beneficiary.  In  return  for  this  gift  to 
him  from  the  monarch,  the  subject  was  bound  to  give  to 
the  king,  when  called  upon,  his  military  service  and  aid, 
from  time  to  time,  as  they  should  be  required.  Thus  the 
favored  subject  entered  into  the  possession  of  the  land  and 
enjoyed  all  of  its  benefits  as  though  he  were  the  absolute 
owner  ;  still,  as  he  was  not  the  absolute  owner,  he  was  said, 
in  the  subsequent  language  of  the  feudal  law,  to  hold  the 
land  of  his  sovereign,  and  the  method  or  relation  by  which 
he  thus  held  was  denominated  a  tenure  or  holding,  and  all 
tenures  were  at  first  of  a  military  character,  because  they 
only  required  that  the  tenant  should  furnish  military  aid  to 
the  king,  as  a  recompense  for  the  possession  which  had  been 
granted  to  him. 

§  440,  It  has  been  a  disputed  question,  for  how  long  a 
time  these  benefices  were  originally  granted.  Sir  William 
Blackstone  asserts  that  the  fiefs  were  originally  precarious, 
and  liable  to  be  revoked,  without  cause,  at  the  will  of  the 
monarch  ;  that  by  the  gradual  progress  of  the  system,  gifts 
for  life  took  the  place  of  the  uncertain  benefices,  which, 
upon  the  death  of  the  tenant,  would  return  again  into  the 
possession  of  the  king,  to  be  again  granted  out ;  that  in  such 
new  allotment,  the  children  of  the  deceased  tenant  would 
prefer  the  strongest  claims  upon  the  bounty  of  the  king ; 
and  so  it  grew  to  be  the  practice,  as  a  matter  of  course,  to 
reinvest  the  child  or  children  of  a  dead  vassal  with  the  lands 
held  by  their  father ;  that  this  practice,  commencing  as  a 


256  THE   FEUDAL    SYSTEM. 

favor,  came  at  last  to  be  considered  as  a  vested  riglit,  until 
all  fiefs,  eitlier  by  sufi'erance,  or  by  their  original  creation, 
were  turned  into  inheritances,  descending  from  father  to 
son,  subject  only  to  the  returns  and  other  charges  which 
were  established  and  regulated  by  the  feudal  law.  More 
recent  and  learned  writers  deny  the  entire  correctness  of 
these  statements,  and  insist  that  there  is  no  record  or  other 
evidence  that  the  benefices  were  ever  revocable  at  the  pleas- 
ure of  the  king,  without  some  delinquency  on  the  part  of  the 
tenant.  It  would  seem  to  be  the  better  opinion,  that  these 
grants  of  land  were,  from  the  first,  for  the  life  of  the  holder, 
or  hereditary.  All  agree  that,  whether  the  fief  were  preca- 
rious, for  life,  or  hereditary,  it  would  be  forfeited  and  return 
to  the  king,  upon  any  failure  of  faith  and  duty  on  the  part 
of  the  tenant. 

§  441.  The  first  great  change  in  the  simplicity  of  the 
feudal  system,  was  the  practice  of  subinfeudation.  When 
benefices  had  become  hereditary,  those  great  vassals  who 
held  immediately  from  the  crown,  began  to  grant  parcels  of 
their  land  to  other  tenants,  to  be  held  by  them  by  the  same 
tenure,  for  the  same  services  which  were  rendered  by  the 
chief  to  the  monarch.  Thus  there  were  two  classes  of  ten- 
ants, the  first  holding  from  the  king,  but  lords  over  their 
inferiors.  This  process  of  dividing  and  subdividing  was 
continued  until  many  ranks  of  tenants  intervened  between 
those  rude  persons  who  actually  tilled  the  soil,  and  the  mon- 
arch, who,  originally  in  fact,  but  now  hardly  more  than  in 
name,  was  the  ultimate  owner  of  the  soil.  This  practice 
of  subinfeudation  in  France,  together  with  the  vast  posses- 
sions held  by  a  few  of  the  crown  vassals,  reduceid  the  power 
of  the  king  in  the  tenth  century  to  a  mere  shadow,  and  left 
him  the  actual  government  of  but  a  mere  fraction  of  the 
territory. 

§  442.  By  the  process  of  subinfeudation,  the  count  or 
duke  holding  a  large  province,  although  in  theory  a  vassal 
of  the  crown,  and. owing  allegiance  and  military  duty,  be* 


CHANGE  FKOM  ALLODIAL  TO  FEUDAL  LANDS.      257 

came  in  reality  an  independent  sovereign.  The  general 
national  allegiance  of  the  inhabitants  of  each  county  or 
dukedom  was  transferred  to  their  immediate  lords,  and  the 
feeling  of  national  loyalty  was  supplanted  by  the  feudal  tie 
of  each  person  to  his  direct  superior.  Tlie  great  nobles  as- 
sumed the  character  of  indej^endent  princes,  and  the  lesser 
lords  were  not  slow  in  following  the  example,  and  exercising 
supreme  control  over  their  smaller  baronies.  This  internal 
condition  of  the  country  was  much  more  marked  in  France 
than  in  England,  for  although  many  of  the  English  barons 
were  very  powerful  and  turbulent,  yet  none  approximated 
to  the  state  and  condition  of  the  French  counts  and  dukes. 
It  was  the  policy  of  William  the  Conqueror  to  divide  up 
the  territory  into  a  large  number  of  fiefs,  so  that  no  one 
noble  could  hold  a  great  preponderance  over  the  others,  or 
approach  the  power  and  dignity  of  the  king.  The  natural 
result  of  this  destruction  of  the  central  power  in  the  king- 
dom, and  multiplication  of  independent  or  semi-independ- 
ent nobles  in  France,  was  to  throw  the  whole  country  into 
a  state  of  confusion  ;  petty  wars  between  different  feudal 
lords  were  constant ;  no  general  law  was  acknowledged  ; 
no  rights  of  property  or  person  were  respected ;  the  only 
means  of  comparative  safety  and  immunity  from  attack  was 
found  in  the  feudal  protection  of  a  powerful  baron.  This 
internal  condition  of  the  country  brought  about  another 
great  change  in  the  disposition  of  landed  property. 

§  443.  It  has  been  said  that  at  the  Frankish  invasion, 
those  of  the  old  proprietors  who  retained  their  lands,  held 
them  as  allodial,  and  that  a  large  portion  of  the  barbarians 
received  their  shares  in  the  same  kind  of  ownership.  These 
proprietors  were  now  brought  into  a  deplorable  condition. 
Having  no  resource  in  the  authority  of  the  king,  and  no 
protection  from  the  laws,  they  were  exposed  to  the  contin- 
ual rapacity  of  the  counts,  and  other  nobles.  The  owners 
of  the  castles  and  fastnesses  would  sweep  down  upon  these 
proprietors,  ravage  their  possessions,  and  carry  them  off,  to 
17 


258  THE   FEUDAL    SYSTEM. 

be  ransomed  at  anj  exorbitant  charges.  The  military 
tie  of  lord  and  vassal  was  the  only  barrier  to  these  con- 
tinual attacks,  for  while  it  imposed  a  duty  of  warlike 
service  upon  the  vassal,  it  also  aflforded  the  protection 
of  the  lord.  An  allodial  proprietor  had  no  such  secmi- 
ty,  and  his  only  safety  lay  in  a  compromise.  Thus  began 
the  custom  of  the  allodists  surrendering  their  lands  to  some 
eudal  lord,  and  receiving  them  back  from  him  as  his  vas- 
sals. To  such  an  extent  was  this  practice  carried,  that  dur- 
ing the  10th  and  11th  centuries  it  appears  that  almost  all 
the  allodial  lands  of  France  were  converted  into  feudal,  held 
by  military  service,  and  assuring  for  their  tenants  military 
protection.  The  general  maxim  of  the  feudal  law,  after- 
ward propounded,  was  nulle  terre  sans  seigneur  /  and  this 
would  seem  to  have  been  literally  true  in  England  after  the 
conquest,  but  in  France  it  was  never  strictly  true,  for  in  the 
southern  provinces,  or  pays  du  droit  ecrit^  where  the  influ- 
ence of  the  Roman  civilization  and  the  Roman  jurispru- 
.dence  was  more  strongly  and  more  persistently  felt,  lands 
were  so  generally  allodial,  that  the  presumption  was  in  their 
favor,  unless  the  contrary  was  shown. 

I  shall  now  proceed  to  explain  the  peculiar  features  and 
incidents  of  the  systeni,  regarded  as  a  code  of  positive  laws 
regulating  the  ownership  and  disposition  of  real  property. 

§  4AA.  The  feudal  relation  of  lord  and  vassal  was  one  es- 
sentially of  mutual  support  and  assistance.  Heavy  burdens 
were  laid  upon  the  one,  but  they  all  demanded  correspond- 
ing duties  and  obligations  from  the  other.  If  the  vassal  was 
bound  to  furnish  an  uncertain  amount  of  personal  military 
attendance  to  his  superior,  in  his  wars  public  or  private,  and 
in  later  tunes  to  contribute  much  money,  the  lord  was  in 
turn  obliged  to  warrant  and  secure  his  dependent  in  the 
quiet  possession  of  his  land,  and  to  defend  him  against  all 
enemies.  Many  circumstances  contributed  to  preserve  this 
tie,  and  to  strengthen  its  bands.  It  was  certainly  for  the  in- 
terest and  advantage  of  both  lord  and  vassal,  that  it  should 


HOMAGE   AND   FEALTY.  259 

be  kept  unbroken.  Added  to  this  were  those  sentiments  of 
lofty  honor,  which,  partly  the  product  of  the  feudal  system, 
in  turn  contributed  much  to  its  unity  and  strength.  The 
vassal  and  the  lord  were  bound  by  every  feeling  of  personal 
faith,  by  the  dread  of  shame  and  infamy,  and  by  the  sanc- 
tions of  the  holy  religion,  whose  outward  observances,  at 
least,  formed  a  part  of  the  daily  life,  to  preserve  inviolate 
the  reciprocal  duty  which  related  them. 

§  445.  The  ceremonies  used  in  conferring  a  fief  were  pe- 
culiar and  interesting,  exhibiting  at  once  the  complete  sub- 
mission of  the  vassal,  and  the  complete  transfer  of  the  lands 
into  his  possession. 

The  first  was  homage.  "  The  manner  of  entering  into 
the  homage  of  another  is  this :  that  is  to  say,  the  feudal 
seigneur  must  be  humbly  requested,  with  the  bare  head,  b}^ 
his  man  who  wishes  to  do  faith  and  homage,  to  be  received 
into  his  faith,  and  if  the  seigneur  will,  he  sits  down,  and  the 
vassal  unbuckles  his  girdle,  if  he  has  one,  lays  down  his 
sword  and  staff,  kneels  on  one  knee,  and  says  these  words  : 
'  I  become  your  man  from  this  day  forth,  of  life  and  limb, 
and  will  hold  faith  to  you  for  the  lands  I  claim  to  hold  of 
you.' "  Tliis  submission  was  the  commencement  of  the 
feudal  allegiance,  which  was  so  strong  a  tie,  and  whose 
breach  was  the  shameful  as  well  as  disorganizing  treason  ; 
whence  we  have,  under  such  an  entire  change  of  national 
polity  and  of  the  organization  of  society,  borrowed  our  no- 
tions and  many  of  our  rules  relating  to  national  allegiance 
and  treason  against  the  state. 

§  446.  The  second  was  the  oath  of  fealty,  which  was 
taken  after  the  homage.  "  And  when  the  freeholder  shall 
do  fealty  to  his  lord,  he  shall  put  his  right  hand  upon  a 
book,  and  shall  say  these  words,  '  This  hear,  my  lord,  that 
I  will  be  faithful  and  loyal  to  you,  and  will  keep  faith  to 
you  for  the  lands  which  I  claim  to  hold  of  you,  and  will  loy- 
ally fulfil  unto  you  the  customs  and  services  that  I  shall 
owe  you  on  the  conditions  belonging  thereto,  so  help  me 


260  THE   FEUDAL   SYSTEM. 

God  and  the  Saints.'  And  then  he  shall  kiss  the  book,  but 
he  sliall  not  kneel  when  he  does  fealty,  nor  make  so  humble 
a  reverence  as  is  before  prescribed  for  homage.  And  there 
is  a  great  difference  between  doing  fealty  and  doing  hom- 
age ;  for  homage  can  only  be  done  to  the  seigneur  himself, 
whereas  the  seneschal  of  the  seigneur's  court,  or  his  bailiflf, 
may  receive  fealty  in  his  name." 

§  447.  The  third  was  the  conveyance  and  investiture  of 
the  lauds.  This  ceremony  was  either  symbolic  or  actual. 
In  either  case  it  was  public,  done  before  witnesses,  and  in  a 
solemn  manner,  so  as  to  take  the  place  of  writings.  If  the 
investiture  was  actual,  the  tenant  was  taken  upon  the  land, 
and  the  possession  was  formally  delivered  to  him  by  the 
lord,  or  his  deputy.  If  it  were  symbolic,  the  lord  gave  to 
his  new  vassal  a  handful  of  earth  or  sod,  or  a  branch  cut 
from  a  tree,  or  a  piece  of  thatch  from  a  house,  or  such  like 
article  taken  from  the  soil.  These  two  methods  became  the 
livery  of  seizin,  known  to  the  English  lawyers  as  an  evi 
dence  of  the  ownership  and  possession  of  lands. 

§  448.  The  essential  characteristics  of  a  feud  in  its  puri 
ty  before  it  had  degenerated  from  its  first  simple  military 
character,  were  the  following  : 

1.  The  absolute  ownership  of  the  land  was  in  one  person, 
called  the  lord,  and  the  use,  occupancy,  and  profits  of  the 
soil  were  held  by  another,  called  the  vassal.  In  this,  feudal 
ownership  differed  from  allodial,  where  the  ultimate  proper- 
ty in  the  soil  and  the  right  to  its  profits  met  in  the  same 
person.  It  is  unnecessary  to  add  anything  more  to  what 
has  been  already  said  of  this  fundamental  element  of  the 
feud. 

§  449.  2.  The  feudal  law  and  feudal  tenures  pertained 
only  to  land.  It  can  be  easily  seen  from  the  very  nature  of 
the  relation  between  lord  and  vassal,  and  the  peculiar  char- 
acter of  the  tenure,  that  personal  property  could  not  with 
any  propriety  be  made  the  subject  of  these  relations.  Per- 
gonal property  is  too  transitory  in  its  nature,  too  much  con- 


THE   RELATION   BETWEEN   LORD   AND    VASSAL.  261 

eumed  in  tlie  using,  to  be  the  sign  of  tlie  permanent  tie  be- 
tween the  superior  lord  and  his  tenants.  In  addition  to 
this  consideration  was  the  fact  that  movable  property,  in 
the  flourishing  times  of  the  feudal  system,  formed  but  an  in- 
significant part  of  the  general  wealth,  and  had  attained  none 
of  the  importance  which  it  has  reached  in  modern  times. 

§  450.  3.  The  third  essential  feature  was  the  relation 
between  the  lord  and  his  vassal.  Of  the  general  nature 
of  this  mutual  relation  and  the  means  by  which  it  was 
strengthened,  I  have  already  spoken.  I  have  only  to  add, 
1st.  Tlie  services  to  be  rendered  by  the  vassal  were,  in  the 
purity  of  feuds,  entirely  military.  They  were,  therefore, 
necessarily  uncertain,  and  varied  according  to  the  circum- 
stances and  fortunes  of  the  superior.  The  vassal  must  not 
betray  his  lord's  secret,  nor  conceal  from  him  the  evil  de- 
signs of  others  ;  he  must  not  violate  the  honor  of  his  family, 
or  injure  his  person  or  fortunes  ;  he  must  attend  him  in  his 
wars  with  an  amount  of  military  aid  proportioned  to  the 
quantity  of  land  held  by  him  as  a  vassal ;  he  must  attend 
his  lord's  courts,  of  which  I  shall  speak  more  in  the  sequel. 
When  his  lord  was  in  danger,  he  must  do  all  in  his  power 
to  rescue  him  ;  and  should  he  be  taken  prisoner,  he  must 
ransom  him,  or  offer  himself  in  his  stead.  Uncertain  as  was 
the  amount  of  military  service  required  from  the  vassal, 
there  was  still  some  limit  upon  its  extent.  It  was  generally 
understood  that  the  holder  of  a  knight's  fee  was  bound 
to  accompany  his  lord  at  least  forty  days  in  each  year, 
if  required,  with  horse  and  arms.  Of  course  the  great 
vassals  of  the  crown,  holding  possessions  of  immense  ex- 
tent, would  be  forced  to  bring  into  the  field  quite  an 
array,  armed  and  equipped  for  war.  How  much  consti- 
tuted a  knight's  fee  is  not  accurately  determined.  It 
doubtless  varied  in  different  localities  with  the  produc- 
tions and  value  of  the  soil.  A  holder  of  half  a  knight's 
fee  must  furnish  service  for  twenty  days.  A  failure  to  re- 
spond to  the  requirements  of  the  lord  in  this  respect,  in 


262  THE   FEUDAL   SYSTEM. 

strictness  would  forfeit  the  fief,  but  a  practice  of  inflicting 
fines  instead  soon  grew  up,  and  became  common  in  England 
under  the  name  of  escuage.  Li  the  progress  of  time,  as  so- 
ciety became  more  and  more  settled,  and  the  impromptu 
forces  furnished  by  feudal  vassals  gave  place  to  regular  and 
constant  armies  of  hired  forces,  the  military  service  began 
to  be  changed  into  the  more  certain,  and  then  more  satisfac- 
tory compensation,  of  money  paid  as  rent.  But  this  marked 
the  decline  of  the  system,  and  was  not  at  all  consistent  with 
its  distinctive  principles.  I  shall  recm*  to  this  change  here- 
after, when  treating  at  length  of  the  tenures  to  real  proper- 
ty, which  were  in  England  the  outgrowth  and  fruits  of 
feudalism.  On  the  part  of  the  lord  the  duty  was  that  of 
protecting  the  vassal  in  the  possession  of  his  land,  and  of 
defending  his  person  from  their  common  enemies,  and  of 
furnishing  opportunities  and  means  of  justice  in  baronial 
courts.  2d.  Another  feature  was  introduced  into  the  rela- 
tion between  lord  and  vassal  b}"  the  practice  of  subinfeuda- 
tion. Of  this  I  have  already  spoken  sufliciently.  3d.  The 
relation  was  territorial,  not  merely  personal.  The  condi- 
tion of  a  vassal  could  not  exist  vsdtliout  a  fief  as  the  basis  of 
it.  There  were  doubtless  free-born  retainers  and  depend- 
ents of  the  lords  and  barons,  who  held  no  lands,  but  they 
occupied  an  uncertain  position,  and  were  continually  sinking 
into  the  ranks  of  laborers.  The  feudal  allegiance  seemed. to 
be  considered  as  soinething  annexed  to  the  soil,  and  was  due 
as  a  condition  of  holding  the  fief.  The  doctrine  of  a  general 
national  allegiance  was  not  known  during  the  flourishing 
age  of  the  feudal  system,  but  the  peculiar  territorial  tie  ran 
through  the  whale  body  politic,  binding  each  person  to  his 
immediate  superior,  and  so  all,  as  dependants  of  the  highest 
lords,  to  the  king.  Of  course  an  allegiance  so  distributed, 
and  filtered,  as  it  were,  through  so  many  different  strata  of 
society,  was  very  much  weakened,  before  it  reached  the 
nominal  head  of  the  nation. 

§  451.  4:th.  The  relation  was  accompanied  with  the  right 


BARONIAL   COURTS.  263 

in  the  lord  of  administering  justice  throughout  his  territory, 
in  his  private  court.  Before  the  firm  establishment  of  the 
feudal  policy  in  England  and  France,  the  courts  were  local 
and  representative,  but  with  the  increasing  power  of  the 
system,  and  especially  the  growth  of  authority  which  the 
practice  of  subinfeudation  gave  to  the  greater  nobles,  or 
suzerains,  these  local  tribunals  were  superseded  by  the  terri- 
torial courts  of  the  feudal  lords.  It  was  a  part  of  the  vas- 
sal's duty  to  do  service'  to  his  lord  in  his  court.  These 
possessors  of  fiefs  were  called  peers  of  the  courts  of  their 
suzerain,  and  the  obligation  rested  upon  them  to  originate 
their  complaints  in  these  tribunals,  with  a  right  of  appeal 
to  the  king's  court  in  disputes  of  a  graver  importance,  and 
upon  a  denial  of  justice.  In  like  manner  those  vassals  who 
held  their  fiefs  directly  from  the  crown  were  peers  of  the 
king's  court,  and  were  bound  to  do  suit  there,  that  is,  were 
impelled  by  the  force  of  their  oath  of  fealty  and  pledge 
of  homage,  to  resort  there  and  answer  when  complained 
against,  to  make  their  complaints  there,  and  to  render  the 
assistance  of  their  counsel  and  judgment  when  called  upon. 
These  baronial  courts  had  a  jurisdiction  coextensive  with 
the  territory  held  by  the  lord,  and  took  cognizance  of  aU 
matters  arising  among  the  vassals  and  feudal  tenants.  The 
lord  himself  did  not  universally  sit  as  judge,  and,  indeed,  it 
grew  to  be  an  uniform  custom  and  regulation  that  the  judi- 
cial power  must  be  exercised  by  a  deputy  or  bailiff  of  the 
lord,  who  should  hold  courts  in  his  name.  He  must  also, 
in  his  deliberations,  consult  with  the  lord's  vassals,  or  peers 
of  the  court  who  attended  its  sittings,  or  at  least  with  the 
wisest  and  most  prudent  of  them,  and  rely  much  upon  their 
aid  in  rendering  decisions. 

•  §  452.  5th.  Another  most  important  element  in  this  re- 
lation was,  that  neither  the  tenant  could  alien  or  sell  his 
fief,  nor  the  lord  his  seigneury,  without  the  consent  of  the 
other.  This  was  the  rule  when  feuds  were  preserved  in 
their  purity,  and  its  reasons  were  entirely  feudal  and  mill 


S64  THE   FEUDAL   SYSTEM. 

tarj.  If  the  tenant  sold  his  fief,  he  substituted  another 
person  in  his  place  liable  to  do  his  dutj  to  the  lord,  a  per- 
son bound  by  the  same  feudal  compact.  It  was  absolutely 
necessary,  then,  that  the  lord  should  have  a  negative  upon 
such  an  act  of  substitution.  As  he  leaned  upon  his  vassals 
for  his  entire  military  force,  as  in  them  he  found  his  sup- 
porters and  retainers,  so  it  was  to  the  last  degree  important 
that  he  should  know  them  all  to  be  faithful  and  devoted 
to  his  person  and  interests.  This  regulation  gave  him  the 
proper  check,  and  assured  him  of  the  loyalty  of  his  tenants, 
by  forbidding  any  from  being  thrust  upon  him  without  his 
knowledge,  by  the  act  of  a  vassal. 

Reciprocally  the  vassal  could  not  be  required  to  accept 
over  him  a  superior,  unknown,  and  perhaps  hostile,  by  the 
act  of  his  former  and  legitimate  lord.  The  contract  was  a 
mutual  one,  and  the  yielding  homage  and  doing  fealty  had 
been  voluntary  and  personal,  that  is,  directed  to  one  person, 
and  in  him  of  course  to  his  family,  and  could  not  be  shifted 
to  a  stranger  without  consent.  Thus,  by  purely  feudal 
principles  grew  this  remarkable  rule  of  law,  tying  up  the 
land  of  the  kingdom,  setting  it  apart  from  the  general 
wealth  of  the  realm,  isolating  it,  refusing  it  as  a  means  of 
exchange,  rejecting  it  from  trade  and  commerce,  and  thus 
liindering  the  advance  of  these  means  and  instruments  of 
material  comfort  and  progress.  We  still  discover  the  traces 
of  this  purely  feudal  policy,  in  the  laws  of  the  present  age. 

§  453.  These  are  the  essential  features  of  the  feud.  In 
addition  thereto,  there  were  some  other  general  characteris- 
tics, which  obtained  while  the  system  was  in  its  ascendancy 
as  a  purely  military  institution.  Feuds  should  be  granted 
without  price,  that  is,  upon  the  sole  consideration  of  the 
military  services  reserved  and  stipulated  by  the  contract 
between  lord  and  vassal.  While  the  tie  between  them  was 
so  peculiar,  partly  territonal,  and  still  largely  partaking  of 
the  personal  trust  reposed  by  each  in  the  other,  it  would  be 
contrary  to  the  whole  theory  of  the  system,  that  fiefs  should 


INTKODUCTION   OF   UNMILITAEY   FEEDS.  265 

be  sold  by  the  lord  to  any  tenaitt  wlio  was  willing  to  pay  a 
price  demanded.  Again,  they  should  only  be  granted  to 
persons  duly  qualified,  that  is,  of  the  sex,  age,  and  ability 
to  render  military  service.  So  it  was  not  in  acpordance 
with  the  spirit  of  the  institution  to  bestow  a  fief  upon  a  re- 
ligious person  or  house,  who  would  be  debarred  by  their 
profession,  or  to  a  woman,  who  would  be  prevented  by  her 
sex,  from  fulfilling  their  part  of  the  mutual  compact.  That 
this  provision  of  the  la^M|  in  its  simplicity,  was  soon  and 
generally  broken,  is  manifest.  It  was  contrary  to  its  spirit, 
that,  upon  the  death  of  a  vassal,  the  fief  should  be  inherited 
by  a  female  heir,  but  this  was  early  permitted,  although 
the  law  of  primogeniture  undoubtedly  grew  up  ffom  a  strict 
observance  of  the  rule.  Religious  persons  and  houses  were 
allowed  to  hold  land  of  superior  lords,  they  supplying  the 
requisite  amount  of  military  service  by  hired  mercenaries, 
or  from  among  their  own  sub-feudatories.  Again,  the  ser- 
vice rendered  by  the  vassal  should  not  be  fixed  as  to  time 
or  manner.  Even  though  the  amount  of  forty  days  per 
year  for  each  knight's  fee  were  determined,  the  particular 
times  and  manners  were  left  uncertain, 

§  454.  These  were  all  the  marks  of  a  true  jpro][>er  feud. 
Its  foundation  and  animating  spirit  were  military  ;  its  mu- 
tual relation  between  lord  and  vassal  was  honorable ;  its 
services  were  uncertain,  and  such  as  could  be  performed  by 
persons  of  gentle  birth.  By  deviations  from  these  regula- 
tions, there  grew  up  a  class  of  improper  feuds,  in  which  the 
vassals  were  not  capable  of  rendering  military  service ;  or 
the  service  was  made  certain  in  amount,  manner,  and  time, 
or  even  changed  from  a  personal  and  military  assistance, 
into  the  paying  of  a  stipulated  rent  in  money,  or  produce ; 
or  the  service  was  dishonorable,  consisting  of  labor  in  actual 
tilling  the  soil,  or  performing  other  menial  ofiices  for  the 
superior.  As  the  purely  military  and  proper  feuds  were 
gradually  transformed  into  the  class  of  improper  feuds,  by 
the  change  in  the  condition  of  society,  I  shall  speak  of  them 


266  THE   FEUDAL    SYSTEM. 

at  length,  when  I  describe  the  varions  tenures  of  land, 
which  in  England  grew  out  from  the  feudal  system. 

§  455.  There  were  certain  important  incidents  connected 
with  the  pure  feudal  relation  of  lord  and  vassal,  and  the  mil- 
itary tenure  of  lands.  Some  of  these  were  common  in  all 
countries  where  the  system  prevailed,  and  others  appear  to 
have  been  principally  confined  to  England,  having  been 
borrowed  there  from  the  customs  of  Normandy,  with  the 
IS'orman  invasion.  Those  which  were  coextensive  with  the 
law  of  feuds,  were  escheats,  aids,  primer  seizin,  and  fines 
for  alienation. 

1.  Escheats  were  the  natural  and  necessary  consequence 
of  the  feudal  idea,  and  the  tenure  by  which  land  was  held. 
When  feuds  became  generally  inheritable,  so  that,  upon  the 
death  of  an  ancestor,  they  would  descend  to  his  heirs  gene- 
rally, or  to  such  particular  heirs  as  should  be  designated  by 
the  terms  of  the  original  donation,  it  would  not  unfrequent- 
ly  happen,  that  upon  the  death  of  a  tenant  there  would  be 
no  living  beir  to  whom  tbe  inheritance  could  descend.  In 
sucb  case  the  fief  would  return  to  the  lord  ;  he,  having  the 
dcmiinium  direcbum^  would  resume  the  possession,  or  do- 
miniuTn  utile^  and  could  grant  the  soil  to  some  new  tenant. 
This  return  of  the  fief  to  the  lord,  was  called  escheat.  One 
other  state  of  facts  would  produce  the  same  result.  This 
was  such  a  crime  or  disloyal  act  of  the  vassal  as  amounted 
to  a  breach  and  terndnation  of  the  feudal  relation.  The 
tenant  was  then  in  the  same  condition  as  though  he  were 
dead  without  heirs.  The  land  was  forfeited  ;  he  must  yield 
up  liis  possession,  and  his  heirs  had  no  claim,  for  the  condi- 
tion upon  which  the  land  was  holden  had  been  broken.  It 
is  easy  to  perceive  that  we  find  here  the  origin  of  that  pro- 
vision of  tlie  English  law,  which  forfeits  all  the  estate  of  a 
subject  attainted  of  treason,  and  renders  his  blood,  in  the 
technical  language  of  law  writers,  corrupt,  so  that  no  heirs 
can  inherit  property,  when  they  must  trace  their  title 
through  him.     Hard  as  this  rule  seems  to  be  upon  the  un- 


ESCHEATS — AIDS — RELIEFS.  267 

offending  children  of  a  guilty  traitor,  we  can  see  that  it  was 
adopted  from  no  such  consideration  as  that  of  deterring  the 
parent  from  crime  by  the  terrible  result  which  must  follow 
upon  his  offspring,  but  that  it  has  a  purely  historic  origin, 
not  connected  at  all  with  the  policy  of  the  present  age,  but 
referable  solely  to  the  ancient  relation  between  lord  and 
vassal.  Our  American  constitution,  as  it  proposed  to  cut 
us  off  in  a  measure  from  our  close  union  with  the  past,  and 
particularly  rejected  the  principal  features  of  the  English 
government  and  polity  and  jurisprudence  which  are  most 
directly  derived  from  the  feudal  system,  was  consistent  in 
abolishing  this  provision  of  forfeiture  for  treason  and  corrup- 
tion of  blood.  The  individual  American  states  still  retain 
the  escheat  of  lands  to  the  state  upon  an  absolute  failure  of 
heirs  to  inherit  upon  the  deatli  of  the  last  owner.  But  this 
operation  of  the  law,  though  named  escheat,  is  not  the  feud- 
al escheat.  It  is  simply  an  exercise  of  the  supreme  power 
of  the  collective  nationality  to  take  possession  of  lands  for 
the  benefit  of  the  whole  body  politic,  when  there  is  no  par- 
ticular individual  who  can  claim  as  owner,  and  thus  to  res- 
cue the  land  from  disuse  and  waste. 

§  456.  2.  Aids.  These  were  contributions  of  money  from 
the  vassals,  to  relieve  certain  pressing  necessities  of  their 
lords.  They  were  at  first  doubtless  mere  free-will  offerings, 
but  grew  to  be  claimed  by  the  superiors  as  matters  of  right. 
These  aids  were  primarily  and  justly  for  three  purposes 
only :  for  ransoming  the  lord's  person,  when  he  was  taken 
prisoner,  for  bearing  the  expense  of  making  the  lord's  eldest 
son  a  knight,  and  for  furnishing  a  marriage  portion  to  the 
lord's  eldest  daughter. 

Besides  these,  the  lords  began  to  claim  sums  of  money 
from  their  vassals  for  various  other  pui-poses,  such  as  for 
paying  their  own  debts,  or  for  paying  aids  which  had  been 
demanded  by  their  own  suzerain ;  and  thus  these  contribu- 
tions came  to  be  the  means  of  great  injustice  and  oppres- 
sion.    To  remedy  these  evils.  Magna  Charta  abolished  all 


268  THE   FEUDAL    SYSTEM. 

aids  but  the  first  three  mentioned,  and  prevented  the  king 
from  levying  any  upon  his  immediate  vassals,  except  by 
consent  of  parliament. 

§  457.  3.  Reliefs.  At  the  first  stages  of  the  growth  of 
feuds,  it  is  certain  that  fiefs  were  generally  granted  for  life, 
so  that  they  did  not  as  a  matter  of  course  descend  to  the 
vassal's  heirs  upon  his  death.  To  insure  the  renewal  of  the 
grant  to  the  heir,  and  as  a  condition  thereof,  a  sum  of  mon- 
ey was  generally  required  by  the  lord  from  his  new  tenant. 
A-fter  fiefs  became  universally  inheritable,  the  same  contribu- 
tions were  demanded  by  the  lord  from  the  heir  upon  whom, 
if  of  full  age,  the  land  descended  at  the  ancestor's  death. 
These  assessments  were  called  reliefs.  They  were  reliefs  to 
the  empty  coflfers  of  the  lord,  but  were  great  burdens  upon 
the  incoming  heir,  for  while  the  amounts  to  be  paid  were 
entirely  arbitrar}",  at  the  discretion  of  the  lord,  they  might 
result  in  the  virtual  disinheritance  of  the  heir,  or  at  least  a 
very  serious  charge  upon  the  estate.  At  length,  by  the  opera- 
tion of  a  charter  of  Henry  I.  and  a  statute  of  Henry  II.,  reliefs 
were  fixed  at  the  sum  of  100  shillings  for  each  knight's  fee. 

§  458.  4.  Primer  Seizin.  This  was  a  burden  which  rest- 
ed only  upon  the  immediate  tenants  of  the  crown.  It  con- 
sisted of  a  cLaim  which  the  king  had,  upon  the  death  of  a 
tenant,  if  the  heir  was  of  full  age,  to  take  one  year's  profits 
of  the  fief,  in  addition  to  the  relief  mentioned  in  the  last  sec- 
tion. The  practice  grew  out  of  a  right  of  the  crown,  upon 
the  death  of  its  tenant,  to  take  and  hold  possession  of  the 
land,  until  tie  heir  should  make  claim,  and  unless  this  was 
done  within  a  year  and  a  day,  the  fief  was  forfeited.  This 
original  right  changed  into  a  demand  from  the  heir  of  the 
actual  profits  for  the  first  year.  The  term  primer  seizin,  or 
first  seizin,  indicates  the  origin  of  the  custom. 

§  459.  5.  Fines  upon  Alienation.  It  has  already  been 
stated  that  by  the  law  of  pure  feuds,  the  lord  could  not 
alien  his  seignory,  nor  the  tenant  his  fief,  without  the  con- 
sent of  the  other.     To  obtain  such  a  consent  from  the  lord, 


WARDSHIP — MAKKIAGE.  269 

for  the  tenant  to  alien,  it  would  be  natural  for  him  to  de- 
mand a  pecuniary  contribution.  Hence  arose  fines,  pay- 
ible  by  a  tenant  to  the  lord,  upon  the  conveyance  of  his 
Iief.  In  England  this  restriction  upon  the  right  of  the  ten- 
ant was  removed  by  Magna  Charta,  and  by  the  celebrated, 
statute  called  the  "  Statute  of  quia  emptores,"  passed  in  the 
18th  year  of  Edward  I.  This  restriction,  and  the  incident 
fines,  were  still  retained  upon  the  immediate  tenants  of  the 
king, 

§  460.  The  foregoing  incidents  of  the  feudal  relation 
seem  to  have  been  common,  with  various  modifications, 
over  the  whole  of  Europe,  and  seem  also  to  have  been  legit- 
imate fruits  of  the  compact  between  lord  and  vassal.  The 
other  incidents,  which  were  almost  confined  to  England  and 
Normandy,  were  much  more  onerous,  oppressive,  and  arbi- 
trary.    They  were  wardship  and  marriage. 

6.  Wardship.  Upon  the  death  of  a  tenant,  leaving  an 
heir,  if  a  son  under  twenty-one  years  of  age,  or  a  daughter 
less  than  fourteen,  the  lord,  as  guardian  of  the  heir,  had  the 
right  to  the  possession  of  the  fief,  and  the  use  of  the  land 
and  profits  as  his  own,  until  the  son  had  arrived  at  his  ma- 
jority, or  the  daughter  at  the  age  of  sixteen,  and  also  the 
custody  of  the  infant's  person.  The  law  supposed  that  the 
son  was  unable  to  do  military  service  to  his  lord  before  he 
was  of  age,  and  that  the  daughter  was  unfit  to  marry  until 
she  was  fourteen,  and  if  the  wardship  commenced  over  her, 
it  was  arbitrarily  extended  the  additional  two  years.  Upon 
the  arrival  of  the  male  heir  at  the  age  of  twenty-one,  before 
he  could  demand  and  receive  possession  of  his  lands,  he 
must  pay  a  fine  of  one  half  a  year's  profits  of  the  fief,  and 
if  he  were  a  tenant  of  the  crown,  he  must  be  knighted  or 
pay  another  fine. 

§  461.  7.  Marriage.  The  lord  had  the  further  right  of 
disposing  his  infant  female  ward  in  marriage,  provided  that 
ne  ofiered  her  a  match  not  inferior  to  her  in  rank.  In  this  he 
need  not  consult  the  ward's  inclinations  or  wislies,  but  could 


270  THE   FEUDAL    SYSTEM. 

arbitrarily  thrust  upon  her  any  person  whoni  he  chose,  with 
the  single  limitation  above  stated.  Upon  the  refusal  of  the 
ward  to  accept  the  person  proposed  for  a  husband,  a  fine 
was  ]3ayable  to  the  lord,  of  such  an  amount  as  the  marriage 
would  in  good  faith  be  estimated  to  be  worth.  Should  the 
ward  marry  without  consent  of  the  guardian,  the  fine  was 
doubled.  That  the  lord  should  have  a  control  over  the 
marriage  of  his  female  tenant  seems  to  be  in  strict  accord 
ance  with  the  idea  of  the  feudal  relation,  or  else  the  ward 
might  maiTy  a  person  hostile  to  her  superior,  and  thus  in- 
troduce an  enemy  into  the  close  personal  relationship  of  a 
vassal.  But  the  bargaining  and  selling  the  infant  for  ar- 
bitrary amounts  of  money,  the  power  to  present  to  her 
the  alternative  of  a  distasteful  alliance  or  a  ruinous  fine,  was 
one  of  the  most  oppressive  features  of  the  system  in  Eng- 
land, and  could  have  been  nothing  but  a  mere  usurpation 
upon  the  part  of  the  lords,  which  ripened  into  a  legal  right. 

§  462.  It  is  evident  that  these  several  legal  demands 
upon  the  tenant,  and  especially  those  which  were  forced  from 
the  infant  heir  before  he  could  receive  his  fief  and  be  dis- 
charged from  all  the  obligations  pertaining  to  his  minorit}^, 
were  terrible  burdens  to  be  borne  by  the  landed  proprietors 
of  the  kingdom.  The  legitimate  power  in  the  hands  of  the 
lords  was  immense,  and  it  was  of  such  a  character,  and  they 
were  so  related  to  their  vassals,  that  every  opportunity  was 
afforded  for  unwarrantable  abuse  of  the  right.  In  fact,  the 
nation  groaned  under  the  weight  of  these  feudal  burdens, 
but  they  were  only  abolished  by  statute  in  the  reign  of 
Charles  II. 

§  463.  In  the  description  now  given  of  a  pure  feud  and 
its  incidents,  it  must  not  be  supposed  that  in  England  the 
vassals  continued  to  render  their  uncertain  military  service 
to  the  lords,  down  to  the  time  of  Charles  II.  Indeed,  this 
legitimate  feature  of  the  system  had  been  obliterated  genera- 
tions before,  and  had  commenced  to  disappear  before  Mag- 
na Charta.     The  actual  attendance  of  the  vassals  upon  their 


DISUSE   OF  THE   MILITAKT    SERVICE.  271 

lords  in  tlieir  military  expeditions  began  early  to  be  re- 
placed, either  by  mercenary  substitutes,  or  by  tlie  payment 
of  pecuniary  fines,  in  tbe  nature  of  compositions  for  the 
breach  of  duty.  This  change  of  the  actual  service  into  a 
pecuniary  mulct,  grew  to  be  very  common,  and  at  length 
universal,  and  was  called  escuage.  The  alteration  was 
beneficial  to  the  kings,  for  it  enabled  them  to  hire  an  army 
which  would  be  much  more  permanent,  and  therefore  more 
effective,  than  the  shifting  forces  furnished  by  the  purely 
feudal  relation.  Magna  Charta  provides  that  escuages 
should  only  be  levied  by  the  king  with  consent  of  Parlia- 
ment, which  shows  that  although  chivalry  was  then  in  its 
most  flourishing  condition  in  England,  the  canker  was  eating 
deep  into  the  heart  of  the  feudal  system.  We  should  care- 
fully guard  against  the  error  of  supposing  that,  by  the  in- 
troduction of  escuages,  the  military  service  was  changed 
into  fixed  and  certain  rent  for  each  tenant.  The  military 
tenure  still  remained  in  name,  and  in  all  its  incidents  and 
characteristics ;  and  the  various  burdens  of  aids,  reliefs,  etc., 
which  I  have  described,  were  continued  in  their  extreme 
vigor,  after  the  general  disappearance  of  actual  military  ser- 
vice and  the  universal  prevalence  of  the  escuage.  These  as- 
sessments, like  the  duties  which  they  replaced,  were  charac- 
terized by  uncertainty  in  time  and  quantity.  If  they  had 
been  reduced  to  a  fixed  annual  sum,  in  the  nature  of  a  de- 
terminate rent,  the  whole  tenure  would  have  been  altered, 
and  would  have  become  what  was  denominated  free  soc- 
cage,  of  which  I  shall  soon  speak  at  large. 

§  464.  Under  WilKam  the  Norman  and  his  successors, 
the  feudal  system  was  completely  extended  over  England  ; 
all  laws  regulating  the  ownership  of  land,  and  all  kinds 
and  methods  of  proprietorship,  must  naturally  feel  the  influ- 
ence of  the  ancient  institution.  The  law  of  feuds  did  not, 
however,  very  long  preserve  its  purity  and  strictness.  Other 
kinds  of  ownership  arose,  not  marked  by  the  hardships  of 
the  military  tenure.     The  relation,  however,  of  lord  and 


272  THE   FEUDAL    SYSTEM. 

vassal,  or  superior  and  tenant,  was  preserved,  and  is  still 
maintained  in  England.  All  lands  in  England,  not  imme- 
diately in  the  use  and  occupancy  of  the  crown,  were,  and 
still  continue  to  be,  held  of  some  superior  lord,  and  through 
him  of  the  king.  Hence  the  generic  legal  name  for  lands 
is  tenement,  or  something  holden  ;  the  person  who  has  the 
useful  ownership  is  a  tenant ;  and  the  manner  or  condition 
by  which  the  ownership  is  exercised  and  upon  which  it  is 
based,  is  a  tenure.  Tliose  tenants  directly  below  the  king, 
who  held  their  lands  from  the  crown,  were  called  tenants  in 
capite^  and  as  they  granted  out  portions  of  their  property, 
they  became  in  turn  lords,  and  the  subdivision  was  carried 
on  through  a  long  descending  line.  It  is  important  not  to 
confound  this  strictly  feudal  use  of  the  word  tenant  with 
the  same  word  as  constantly  employed  by  us  in  the  ordinary 
transactions  of  life.  Our  tenants  have  the  use  of  lands, 
generally  for  a  short  time,  at  a  fixed  compensation,  all  of 
which  is  regulated  by  an  instrument  called  a  lease.  The 
feudal  tenant  was  to  all  useful  intents  the  owner  of  the  land. 
When  he  died,  the  property  descended  to  his  heirs ;  he 
could,  after  a  while,  sell  or  mortgage  it,  or  de\dse  it  by 
will ;  he  treated  it  as  his  own,  although  behind  him  was  the 
constant  presence  of  his  lord,  requiring  such  return  or  com- 
pensation, from  year  to  year,  through  long  generations,  as 
the  nature  of  the  tenure  should  prescribe.  Strictly  allodial 
land  is  not  held  by  any  tenure,  for  the  ownership  is  abso- 
lute, not  derived  from  a  superior,  so  that  there  is  no  hold- 
ing. In  England  allodial  land  does  not  exist,  tenures  are 
universal.  In  America  all  lands  are  allodial,  except  some 
small  amount  in  New  York,  where  a  remnant  of  the  feudal 
tenures  still  exists.  It  is  sufficiently  evident  that  all  tenures 
are  of  a  feudal  origin,  for  the  separation  of  the  ultimate  and 
useful  ownerships  is  peculiar  to  the  law  of  feuds. 

§  465.  The  actual  tenures  which  sprang  from  the  feudal 
system  were  divided  into  two  grand  classes,  according  to  the 
nature  of  the  services  or  compensation  which  lay  at  the  basis 


TENURES   DEKIVED   FROM   FEUDALISM.  273 

of  the  mutual  compact,  and  by  which  the  right  of  the  tenant 
to  the  land  was  supported.  These  were  free,  and  base  ;  or 
those  which  could  be  held  and  enjoyed  by  all  persons  in  the 
condition  of  freedom,  and  those  whose  services  were  of  such 
a  character,  that,  according  to  the  sentiment  of  the  times, 
they  could  only  be  performed  by  serfs  and  villains.  Ex- 
amples of  services  which  supported  a  free  tenure  may  be 
seen  in  the  military  attendance  demanded  from  the  vassal 
in  a  pure  feud  ;  and  in  the  uncertain  escuages  or  assessments 
upon  him,  which  took  the  place  of  an  actual  appearance  in 
arms ;  and  in  certain  other  acts  of  a  military  and  personal 
character  which  were  not  considered  dishonorable  by  even 
the  highest  nobility,  such  as  carrying  the  king's  sword  and 
the  like  ;  and  in  other  formal  acts,  which  had  no  significance, 
except  as  they  kept  unbroken  the  theory  of  the  feudal  law, 
as  the  annual  presentation  to  the  king  of  a  bow,  or  a  flag, 
which  is  the  service  by  which  the  princely  estate  of  Blen- 
heim is  held  from  the  crown  in  England ;  and  finally,  in  the 
annual  payment  of  a  certain  sum  of  money  or  other  property 
of  value,  like  wheat,  cattle,  or  wine,  in  the  nature  of  rent. 
The  services  peculiar  to  base  tenures  were  those  that  de- 
manded the  manual  labor  of  the  tenant,  as  ploughing,  hedg- 
ing, ditching,  and  the  like,  for  the  lord. 

Tenures  were  also  separated  by  a  line  crossing  the  other 
division  into  two  other  classes ;  those  whose  sei-vices  were 
uncertain  in  amount  and  time,  and  those  whose  services 
were  fixed,  definite  and  certain  in  both  particulars. 

§  466.  The  combination  of  these  divisions  produced  the 
several  kinds  of  English  tenures,  viz. :  1st.  The  purely  feu- 
dal tenure  already  described,  where  the  services  were  free 
and  honorable,  but  uncertain,  and  were  afterwards  commuted 
into  indeterminate  escuages. 

§  467.  2d.  The  Free  Soccage.  This  is  important,  be- 
cause now  almost  all  land  in  England  is  held  by  it.  Its  pe- 
culiar characteristic  is  that  the  services  are  fixed  and  certain 
and  not  military,  although  classed  among  those  fit  for  free  men, 
18 


274  THE    FEUDAL    SYSTEM. 

such  as  the  payment  of  a  certain  annual  rent  in  money  or 
products  of  the  soil.  It  is  probaL)le  that  the  free  soccage 
tenure  is  a  remnant  of  the  Saxon  institutions  preserved 
through  the  general  imposition  of  the  strict  feuds  by  the 
Normans.  At  first,  after  the  revolution  following  the  con- 
quest was  accomplished,  the  amount  of  land  thus  held  was 
small,  and  the  proprietors  insignificant,  and  the  duties  of  the 
tenants  were  probably  more  of  a  mere  sei-vile  kind ;  but  in  the 
progress  of  the  ages,  as  the  burdens  of  military  tenm'es  be- 
came more  onerous  and  offensive,  the  advantages  of  the 
tenure  by  free  soccage  were  gradually  admitted,  even  by 
lords  and  vassals  who  had  despised  the  free  but  humble  soc- 
cager.  Thus  there  was  a  gradual  change  from  one  species 
to  the  other.  The  substitution  of  escuages  for  actual  mili- 
tary services  would  hasten  and  aid  this  transformation,  for 
they  differed  not  at  all  in  principle,  but  only  in  the  regularity 
and  certainty  with  which  they  were  paid.  Finally,  in  the 
twelfth  year  of  Charles  II.,  all  military  tenures  and  their 
incidents  were  swept  away  by  one  act  of  Parliament,  and 
the  tenm-e  by  free  soccage  was  substituted  in  their  place. 

§  468.  The  derivation  of  the  term  soccage  has  given 
rise  to  some  dispute.  The  generally  accepted  etymology  is 
that  the  primitive  word  is  the  Latin  socca  or  soccus,  a  plough, 
because  the  original  services  rendered  by  the  socmen  were 
of  a  servile  and  rustic  character ;  in  short,  that  this  class  of 
tenants  were  the  primitive  tillers  of  the  soil.  Sir  WiUiam 
Blackstone  adopts  and  warmly  advocates  another  etymology, 
namely,  that  the  radical  word  is  the  Saxon  soc,  free.  lie 
bases  the  opinion  on  the  great  immunities  enjoyed  by  holders 
of  this  description.  He  argues  that  if  this  species  of  tenure 
liad  so  low  an  origin,  it  would  never  have  attained  so  much 
consideration,  and  reached  a  })Osition  so  preferable  to  all 
others  Still  the  weight  of  the  historical  argument  is  en- 
tirely with  the  other  derivation.  Tlie  oldest  writers  and 
records  speak  of  socmen  as  distinguished  from  the  milites ; 
regard  them  as  inferior  in  every  respect ;  compare  and  class 


SOCCAGE   TENUEE — VILLANAGE.  275 

them  with  villains,  and  the  French  roturiers.  Thej  were 
probably  at  first  in  the  same  social  condition  as  the  Roman 
coloni,  and  perhaps  among  the  remnants  of  these  Eoman 
laborers  in  Britain,  we  shall  find  the  oiigin  of  the  feudal 
soccagers.  It  was  the  insignificance  of  the  old  tenants  in 
soccage  that  preserved  them  from  the  exactions  of  the  feudal 
lords,  and  not  any  idea  of  freedom  or  privilege  connected 
with  their  condition.  The  subject  Saxons  were  not  likely 
to  be  the  recipients  of  any  special  favor  from  their  conquer- 
ors, which  should  distinguish  them  above  the  knights  and 
barons. 

The  tenures  in  soccage  were  subject  to  some  of  the  same 
duties  and  restrictions  which  belonged  to  those  of  a  military 
character.  The  tenants  must  swear  fealty  to  their  lord  ;  they 
were  liable  for  the  same  aids,  for  reliefs  on  the  heir's  succeed- 
ing to  his  estate,  to  primer  seizin,  to  fines  for  alienation, 
and  to  escheats.  Wardship  and  marriage  of  an  infant  lieir 
to  land  held  in  soccage  did  not  however  belong  to  the  lord. 

§  469.  3d.  The  third  general  species  of  tenure  was  that 
of  villanage,  in  which  the  services  were  of  a  base  and  servile 
character.  Tliis  was  divided  into  pure  villanage,  in  which 
the  tenant  was  bound  to  do  whatsoever  the  lord  might  de- 
mand, the  service  being  thus  uncertain  as  well  as  base,  and 
villain  soccage,  in  which  the  tenant  was  compelled  to  do 
only  a  definite  and  certain  amount  of  labor  for  his  lord, 

§  470.  Before  enlarging  upon  this  species  of  tenm*e,  I 
will  briefly  describe  the  condition  and  status  of  the  class  or 
order  of  villains  under  the  feudal  system  in  England,  and 
throughout  Europe.  I  commence  this  account  by  a  picture 
of  actual  life,  during  the  maturity  and  vigor  of  the  system, 
and  introduce  a  passage  from  Guizot's  History  of  Civiliza- 
tion in  Europe.  "  "We  will  visit  the  possessor  of  a  fief  in 
his  lonely  domain,  we  will  see  the  course  of  life  which  he 
leads  there,  and  the  little  society  by  which  he  is  surrounded. 
Having  fixed  upon  an  elevated  solitary  spot,  strong  by  na- 
ture, and  which  he  takes  care  to  render  secure,  the  lordly' 


276  THE   FEUDAL    SYSTEM. 

proprietor  of  tlie  domain  builds  his  castle.  Here  he  settles 
himself,  with  his  wife  and  children,  and  perhaps  some  few 
freemen,  who,  not  having  obtained  fiefs,  not  having  them- 
Belves  become  proprietors,  have  attached  themselves  to  his 
fortunes,  and  continued  to  live  with  him,  and  form  a  part 
of  his  household.  These  are  the  inhabitants  of  the  in- 
terior of  the  castle.  At  the  foot  of  the  hill  on  which  the 
castle  stands,  wefi[nd  huddled  together  a  little  population  of 
peasants,  of  serfs,  who  cultivate  the  lands  of  the  possessor 
of  the  fi.ef.  In  the  midst  of  this  group  of  cottages,  religion 
soon  planted  a  church  and  a  priest.  A  priest  in  those  early 
days  of  feudalism,  was  generally  chaplain  of  the  lord  and 
curate  of  the  village,  two  ofiices  which  by  and  by  be- 
came separated,  and  the  village  had  its  pastor  dwelling  by 
the  side  of  his  church. ''  This  sketch  applies  as  well  ta 
England  as  to  France.  If  we  now  add  that  a  great  baron, 
holding  an  immense  amount  of  land,  lived  in  princely  state, 
with  a  household  composed  of  knightly  and  noble  retainers 
from  among  his  vassals,  and  that  his  domain  was  parcelled 
out  into  smaller  fiefs  held  by  inferior  lords,  whose  social 
and  domestic  picture  has  just  been  drawn,  and  that  these 
in  turn,  as  vassals  of  their  suzerain,  must  attend  him  with 
military  service  in  his  wars,  and  that  the  actual  tilling  of  the 
soil,  as  well  that  in  possession  of  the  lords  as  that  occupied 
by  the  base  tenants,  is  done  by  the  serfs  or  villains,  we  shall 
have  a  more  complete  description  of  the  state  of  society 
and  the  actual  working  of  the  feudal  system.  If  we  add  to 
this,  that,  scattered  among  these  proprietors  of  lordly  castles, 
were  some  other  tenants,  inhabiting  humbler  mansions,  not 
surrounded  by  such  military  state,  not  going  out  with  their 
fellows  upon  their  lord's  expeditions,  but  papng  an  annual 
rent,  and  contenting  themselves  with  the  more  peaceful  oc- 
cupation of  managing  their  estates,  and  overseeing  their 
serfs,  and  if  we  further  add  the  communities,  mostly  of 
small  traders  and  citizens,  collected  in  towns  and  boroughs, 
Bituated  all  within  some  fief,  and  held  from  some  baron  or 


THE   CONDITION    OF   VILLAINS,  277 

other  lord,  our  general  picture  of  English  society  during  the 
vigor  of  feudalism  will  be  complete.  We  cannot  but  see, 
that,  though  humble  and  despised,  the  villains  played  an 
important  part  in  the  chain  of  mutual  dependence.  They 
were  the  broad  basis  upon  which  the  rising  fabric  was  built, 
until  it  culminated  in  the  haughty  and  powerful  barons  and 
feudal  monarch.  They  were  the  great  and  almost  only  pro- 
ducers in  the  aggregated  communities.  Still  their  situation, 
their  political,  social  and  legal  status  was  debased  to  the 
last  degree.  Yet  deep  j^lanted  in  the  ethnic  constitution  of 
the  nation,  was  a  vital  principle,  derived  from  a  Saxon 
origin,  which,  subdued  though  not  destroyed  by  the  over- 
powering weight  of  the  feudal  system,  was  finally  to  work 
out  their  complete  enfranchisement.  That  principle  was 
the  presumption  of  law  in  favor  of  the  condition  of  freedom, 
against  that  of  villanage.  The  work  was  slow,  but  it  was 
sure  and  perfect.  I  shall  in  another  place  trace  the  progress 
of  this  gradual  development  of  the  principle  of  individual 
liberty,  until  it  succeeded  in  abolishing  serfdom,  and  turning 
England  and  thus  America  into  nations  of  freemen. 

§  471.  Without  attempting  to  discuss  the  origin  of  serf 
dom  in  general,  it  is  sufficient  to  say  that  it  seems  to  have 
been  universal  until  quite  a  recent  period  in  the  history  of 
the  world,  though  condemned  by  all  standard  writers,  except 
by  a  small  school  of  recent  apologists  in  our  own  country,  as 
contrary  to  natural  law.  The  Saxons  possessed  theows  before 
the  Norman  conquest ;  the  institution  prevailed  co-extensive 
with  feudalism  ;  and  it  is  familiar  to  all,  that  the  most  ardent 
Greek  and  Roman  patriots  held  the  right  of  life  and  limb 
and  property  over  their  slaves.  The  villains  in  England, 
during  the  domination  of  the  feudal  system,  were  probably 
partly  the  descendants  of  the  ancient  Britons,  enslaved  by 
their  Saxon  conquerors,  and  partly  the  lower  and  poorer 
classes  of  Saxons,  reduced  to  servitude  in  turn  by  their 
Norman  masters.  Their  personal  status  was  double.  In 
respect   to  their  lords,  or  really  owners,  they  had  almost 


278  THE    FEUDAL    SYSTEM. 

no  rights.  The  exceptions  were,  that  the  lord  might  net  kill 
or  maim  them,  or  commit  a  rape  upon  the  females.  Should 
their  masters  be  guilty  of  the  latter  acts  of  violence,  thej 
were  punished  at  the  suit  of  the  king,  but  not  of  the  villain. 
In  respect  to  all  other  persons,  however,  villains  were  abso- 
lutely free,  with  all  the  rights  and  privileges  of  freemen. 
They  could  acquire,  hold,  or  possess  no  property  of  any  de- 
scription as  against  their  lord  ;  whatever  they  should  obtain 
in  any  way,  he  might  seize  and  enjoy.  They  could  maintain 
no  suit  against  him,  except  a  proceeding  in  the  nature  of  a 
prosecution  of  murder  for  the  killing  of  an  ancestor ;  they 
were  obliged  to  perform  whatever  menial  oflGices  and  labors 
he  might  demand.  Yet  in  tliis  their  low  estate,  they  were 
supported  by  a  simple  principle  of  the  law,  making  pre- 
sumptions in  favor  of  liberty,  which  eagerly  grasped  at 
every  opportunity  for  their  enfranchisement,  and  which  thus 
distinguished  them  by  a  strong  contrast  from  the  condition 
of  African  slavery  in  this  country,  where,  by  the  several 
State  laws  in  which  the  institution  exists,  and  by  the  nation- 
al legislation,  all  the  legal  presumptions  are  against  tho 
slave,  and  in  favor  of  the  master.  Villains  were  of  two 
classes,  regardant,  and  in  gross.  Those  called  regardant 
were  annexed  to  the  soil,  as  it  were,  belonging  to  it,  and 
passed  with  it  when  it  was  conveyed,  or  when  it  was  inher- 
ited. In  this  they  resembled  the  condition  of  the  Kussian 
serfs,  before  they  were  enfranchised  by  the  present  reigning 
emperor,  Yillains  in  gross  were  not  considered  as  attend- 
ant upon  a  manor,  or  fief ;  they  were  not  fixtures  upon  the 
land,  but  were  annexed  to  the  person  of  the  lord,  to  be  dis- 
posed of  by  him  at  will.  These  latter  were  very  few  in 
number. 

§  472.  Whatever  land  a  villain  had  it  is  plain  he  held 
entirely  at  the  caprice  or  will  of  his  lord,  who  might  dispos- 
fess  him  at  pleasure.  The  amount  of  land  thus  hold  by 
each  villain  was  small,  sufficient  for  a  cottage  and  ground 
to  support  his  family.     The  services  rendered  were  done 


EFFECTS    OF   FEUDALISM   ON   MODERN    LAW.  279 

upon  the  domain  of  the  master,  and  consisted  in  digging, 
ploughing,  manuring,  cutting  wood,  hedging,  ditching,  and 
such  like  servile  duties.  Those  humble  laborers  were  gath- 
ered together  in  small  villages  within  the  manor,  whence 
their  name,  from  the  Latin  villa. 

§  473.  Tenure  by  villanage  has  long  since  disappeared 
in  England,  and  has  there  been  succeeded  by  a  species  of 
ownership,  which  has  no  counterpart  or  analogy  in  the 
United  States,  called  copyhold  tenure.  The  copyhold 
tenants  are  the  political  successors  of  the  ancient  villains, 
but  the  entirely  arbitrary  right  of  the  lord  has  departed, 
and  the  simple  possession  of  the  tenant  at  the  will  of  his  su- 
perior has  strengthened  into  a  strict  right,  depending  upon 
the  immemorial  usages  of  the  manor  to  which  they  belong. 
Copyhold  tenure  is  still  a  part  of  the  English  law,  but  as  it 
is  entirely  unknown  with  us,  it  will  not  be  necessary  to  de- 
scribe it  more  particularly. 

§  474.  Having  thus  sketched  the  positive  institutions 
affecting  the  law  of  real  property  and  the  status  of  the  in- 
dividual, which  were  a  part  of  the  feudal  system,  and  which 
existed  during  its  maturity  and  vigor,  I  shall  now  proceed 
to  show  how  the  English  and  American  law  has  since 
been  affected  by  this  cause,  and  to  point  out  some  of  the 
principal  features,  which,  from  a  feudal  origin,  are  still  im- 
pressed upon  our  jurisprudence. 

We  should  naturally  suppose  that  the  influence  of  the 
feudal  system  upon  succeeding  ages  would  be  great,  even 
after  feudalism  in  its  integrity  had  disappeared.  Institu- 
tions so  marked  in  their  character,  so  deeply  affecting  all 
classes  of  society,  penetrating  so  intimately,  not  only 
through  the  public  life,  but  into  the  very  private  and  home 
life  of  a  people,  must  make  a  deep  impression  upon  their 
manners,  customs,  and  legislation,  which  a  long  lapse  of 
years  only  can  entirely  obliterate.  Peoples  do  not  change 
in  a  single  generation.  The  outward  institutions,  the  forms 
of  government,  the  executive  and  administrative  functions, 


280  THE   FEUDAL   SYSTEM, 

may  be  revolutionized  by  some  sudden  outbreak,  some  mo- 
mentary shock  and  jar  of  the  body  politic,  but  the  real  life 
of  the  nation  will  still  flow  on  in  a  steady  stream.  It  is 
the  work  of  generations  and  centuries  to  alter  the  laws  of  a 
country.  So,  in  examining  the  eflects  of  tlie  feudal  system, 
we  shall  fail  to  discover  any  sharply  defined  line,  distin- 
guishing an  epoch  when  the  law  of  feuds  prevailed,  and  a 
time  when  it  had  ceased.  The  statute  of  Charles  II.  in 
England,  abolishing,  by  one  act  of  the  legislative  will,  the 
whole  mass  of  military  tenures  and  their  harsh  incidents, 
was  but  a  blow  cutting  off  a  decayed  and  almost  lifeless 
limb.  Yet  the  vitality  had  only  deserted  this  branch,  to 
invigorate  other  oft'shoots,  which  have  continued  to  l)ear 
their  fruit  into  our  times,  and  in  our  laws. 

§  475.  The  grand  and  marked  feature  which  distin- 
guished the  law  of  feuds  from  the  Eoman  law  has  already 
been  adverted  to.  It  was  that  preference  which  it  gave  to 
landed  over  personal  property ;  the  two  separate  and  unlike 
codes  which  it  established  in  regard  to  possession  and  proj)- 
erty  in  movables  and  in  immovables.  There  is  certainly  no 
reason  in  the  nature  of  things  for  this  strong  distinction,  no 
reason  why  such  immunities  should  have  been  enjoyed  by 
the  owners  of  land.  The  mere  fact  that  the  soil  cannot  be 
moved,  cannot  be  changed  from  place  to  place,  is  not  such 
an  inherent  difference  of  character  as  would  demand  a  pe- 
culiar and  dissimilar  set  of  legal  rules  for  its  management 
from  those  which  would  suffice  for  goods  and  chattels.  It 
is  plain  to  see  that  the  distinction  of  which  we  are  speaking 
is  founded  entirely  in  the  law  of  feuds,  and  in  the  notions 
which  have  sprung  up  from  that  system  of  policy.  The 
Roman  law  knew  no  such  contrast ;  it  treated  all  kinds  of 
property  in  the  same  manner ;  it  regulated  them  by  the 
same  code ;  it  impressed  upon  them  the  same  j-ights  and 
obligations ;  and  this  ancient  system,  after  being  crushed 
down  by  the  barbarian  invasions,  existing  only  in  close  con- 
tact and  admixture  with  barbarian  laws  and  customs,  has 


ON   THE   OWNERSHIP    OF    LANDS    AND   CHATl'ELS.  281 

by  the  force  of  its  inherent  power,  its  truth  to  nature,  arisen 
from  its  low  condition,  and  once  again  regained  its  suprem- 
acy throughout  Europe. 

§  476.  The  preference  given  by  the  feudal  law  to  lands 
over  chattels  has  affected  the  general  jurisprudence  of  Eng- 
land and  America  in  various  important  particulars.  The 
chief  of  these  I  will  now  proceed  briefly  to  state. 

1.  The  Difference  in  their  Ownership.  The  feudal  sys- 
tem, as  we  hav^e  seen,  introduced  the  method  of  tenures,  or 
the  fact  that  one  person  held  his  land  from  another,  who 
never  parted  with  the  entire  ownershi]^  and  dominion  over 
it.  This  was  the  peculiar  featm'e  of  the  law  of  feuds,  and 
the  principle  yet  prevails  under  one  form  or  another  in 
England,  although  it  has  been  abandoned  in  the  United 
States.  On  the  contrary,  feudalism  did  not  interfere  with 
the  natural  property  in  movables  ;  over  them  the  ownership 
was  absolute.  The  feudal  law  made  but  little  account  of 
this  species  of  wealth.  All  values  were  centred  in  land. 
With  the  rise  and  increased  power  of  free  cities,  and  espe- 
cially the  maritime  towns,  personal  property  received  more 
consideration  ;  the  law  of  ownership,  traflSc,  and  commerce 
became  more  involved,  more  suited  to  the  wants  of  a  stead- 
ily increasing  trade.  But  all  this  was  opposed  to  the  spirit 
of  feudalism  and  largely  contributed  to  its  overthrow. 
During  the  vigor  of  the  system,  while  the  relation  of  lord 
and  vassal  was  sharply  defined,  while  the  gradations  of  sub- 
infeudation were  unljroken  from  the  king  and  great  suze- 
rains down  through  the  series  of  mesne  lords  to  the  humble 
soccagers  and  debased  villains  who  tilled  the  soil,  all  handi- 
craft  was  rude  and  despised  ;  goods,  chattels,  and  all  de- 
scriptions of  personal  property  were  simple  and  mean ; 
horses  for  w^ar  and  for  beasts  of  burden  were  the  most  prized 
of  domestic  animals  ;  the  masses  of  population  were  scattered 
through  the  country,  separated  from  each  other  by  consid- 
erable intervals,  and  grouped  about  the  castles  and  manorial 
residences  of  the  land  owners ;  the  cultivation  of  the  soil  was 


282  THE    FEUDAL    SYSTEM. 

extremely  imperfect  and  unproductive.  Thus  the  law  of 
feuds  passed  by  the  property  in  movables  as  something  of 
too  trifling  importance,  too  insignificant  to  merit  attention. 
It  left  it  where  natural  right  places  it,  and  as  the  Roman 
law  regarded  it  as  well  as  property  in  lands.  The  change 
in  the  estimation  and  value,  which  European  law,  after  the 
overthrow  of  the  empire  and  the  imposition  of  the  barbarian 
rule,  placed  upon  movables,  began,  as  has  been  said,  with 
the  rise  of  the  free  maritime  cities.  Of  these  cities,  and  their 
codes  of  commercial  and  maritime  law,  and  the  enduring 
additions  which  they  made  to  the  general  jurisprudence  of 
Europe,  I  shall  speak  more  at  length  in  another  place. 
From  this  commencement  the  once  despised  chattel  has 
risen  in  importance,  has  asserted  its  superiority  in  some 
sense  to  the  fixed  soil,  and  has  attained  a  value  and  consid- 
eration equal  to  or  greater  than  its  former  rival.  The  la- 
bors of  courts  are  now  almost  solely  directed  to  questions 
involved  in  the  law  of  personal  property  ;  the  provisions  of 
statutes  are  now  almost  entirely  occupied  with  the  same 
subject.  The  law  of  real  property  has  fallen  into  the  back- 
ground, while  commerce  and  trade  and  manufactures  fur- 
nish the  great  material  for  legal  controversy  and  decision. 

§  477.  2.  Their  Sale  and  Alienation.  As  the  law  of 
feuds  left  the  absolute  dominion  in  tlie  owner  of  personal 
property,  so  it  permitted  in  him  the  free  right  of  transfer  and 
sale.  Such  sales  could  be  made  with  the  utmost  informality, 
requiring  at  least  only  a  delivery  or  change  of  possession 
between  the  vendor  and  vendee,  accompanied  by  a  verbal 
contract,  and  perhaps  simply  demanding  the  agreement. 
As  the  disparity  between  the  two  species  of  property  dimin- 
ished, and  chattels  rose  in  value,  and  trade  increased,  it  be- 
came necessary  to  throw  some  guards  about  the  too  free 
transfer  of  movables.  Hence  was  enacted  the  celebrated 
Statute  of  Frauds,  in  the  reii^^n  of  Charles  II.,  which  has 
been  pronounced  to  be  simply  declaratory  of  the  English 
common   law,  and    not  to  intr-^duce  any  new  principles. 


ON  THE  SALE  OF  LANDS  AND  CHA'ITELS.       283 

This  statute  requires  that  a  sale  of  chattels  of  a  certain 
small  amount  in  value,  must  be  evidenced  by  a  memoran- 
dum in  writing,  or  by  a  delivery  or  partial  delivery,  or  by 
a  payment  or  partial  payment  of  the  purchase  money. 
This  statute  is  in  substance  the  law  in  all  the  American 
States. 

§  478.  Alienation  of  lands  was  placed  by  the  law  of 
feuds  in  a  far  different  position,  and  far  different  also  from 
that  under  the  Roman  law.  We  have  already  seen  that  in 
its  simplicity  the  feud  placed  an  almost  absolute  barrier  in 
the  way  of  the  transfer  of  a  fief.  The  genius  of  the  system 
was  opposed  to  a  change  of  proprietors.  The  isolation  of 
the  lords  cut  up  the  state  into  petty  communities,  not  tribes 
or  clans,  for  there  was  no  family  tie ;  and  these  communities 
remained  unbroken  by  accessions  from  abroad,  or  desertions 
from  within.  So  the  descent  of  lands  from  father  to  son 
was  favored ;  its  alienation  from  the  line  of  the  original 
donor  was  strongly  resisted.  By-and-by  tlie  strong  re- 
striction upon  the  power  of  a  proprietor  to  transfer  his  fee 
was  broken  in  upon ;  tenants  were  permitted  to  mortgage 
and  alien,  but  still  subjected  to  the  payment  of  fine  to  the 
lord  as  a  consideration  for  his  permission.  This  privilege 
was  granted  by  statute  in  England  during  the  reigns  of 
Henry  I.  and  Henry  II. 

§  4Y9.  Certain  means  of  restricting  the  power  of  aliena- 
tion were  introduced  upon  ])rivate  considerations,  for  the 
gratification  of  private  feelings.  Such  were  the  practices 
of  entailing  a  fief,  that  is  granting  land  to  a  person  and  to 
particular  heirs,  as  the  heirs  of  his  body  or  direct  descend- 
ants, or  to  a  person  and  his  eldest  son  in  a  perpetual  Kne, 
thus  introducing  the  principle  of  primogeniture.  This  spe- 
cies of  donation  was  held  to  cut  off  the  power  of  any  partic- 
ular tenant  to  convey  his  property  absolutely  either  by 
deed  or  will,  and  thus  to  deprive  the  expectant  heir  of  his 
anticipated  rights.  I  do  not,  however,  think  that  the  law  of 
sn tails  has  any  direct  connection  with  the  feudal  system 


284:  THE   FEUDAL    SYSTEM. 

otherwise  than  as  it  was  based  upon,  and  presupposes  the 
general  principles  of,  inheritance  which  were  the  immediate 
outgrowth  of  that  system.  Nor  do  I  think  that  the  intri- 
cate divisions  of  estates,  or  the  various  quantities  and 
amounts  of  interest  in  a  particular  portion  of  land,  which 
might  be  owned  by  different  persons  at  the  same  time,  had 
any  necessary  connection  with  the  spirit  of  feudalism,  as 
the  natural  and  inevitable  development  from  that  spirit. 
Tenures  are  such  a  natural  and  inevitable  product.  We 
cannot  conceive  of  feudalism  existing  without  the  law  of 
tenures  growing  out  of  it.  It  was  the  subtlety  of  lawyers, 
and  the  natural  desire  of  men  to  hold  a  gTiiding  hand,  as  it 
were,  over  their  possessions  after  death,  which  introduced 
these  manifold  divisions  of  estates  for  years,  estates  for  life, 
estates  in  fee  simple  and  conditional,  estates  in  possession, 
and  estates  to  come  into  possession  at  some  future  time,  and 
estates  which  perhaps  might  never  come  into  possession  at 
all.     But  of  these  more  in  particular  hereafter. 

§  480.  The  feudal  restrictions  upon  the  power  of  a  pro- 
prietor to  dispose  of  his  fief,  were  more  carefully  preserved 
in  reference  to  that  kind  of  alienation  which  is  accomplished 
by  the  act  of  the  law,  contrary  to  the  will  of  the  party  him- 
self, and  for  the  purj^ose  of  satisfying  his  debts.  Although 
the  spirit  of  the  feud  was  so  far  mitigated  as  to  permit  the 
owner  voluntarily  to  part  with  his  landed  property,  or  to 
mortgage  it,  and  tlins  incur  the  hazard  of  losing  its  j)ossession 
entirely,  it  long  and  strenuously  resisted  any  attempt  of  a 
general  or  judgment  creditor  to  seize  and  sell  it.  Indeed,  so 
careful  was  the  feudal  spirit  to  jjreserve  the  land  and  personal 
services  of  the  tenant  for  the  use  of  the  lord,  that  originally 
a  creditor  could  neither  take  the  land,  nor  the  person  of  his 
debtor,  but  must  satisfy  himself  with  the  goods  and  chat- 
tels. But  as  early  as  the  reign  of  Edward  I.  the  law  was 
altered  by  statute,  and  in  case  of  insufficiency  of  personal 
property,  the  creditor  was  allowed  to  take  one  half  of  the 
debtor's  lands,  until  he  had  satisfied  his  demand  from  their 


ON    INHERITANCE    AND    SUCCESSION.  285 

profits.  Shortly  after,  merchant  creditors  were  permitted 
to  take  all  the  real  property  of  a  debtor  for  a  similar  pur- 
pose, and  in  the  reign  of  Henry  YIII.,  the  right  was  extend- 
ed to  all  classes  of  creditors.  Later  English  statutes  have 
greatly  enlarged  this  nght,  and  have  rendered  a  debtor's 
land  much  more  liable  to  be  seized  and  used,  or  sold  in 
payment  of  debts. 

§  481.  In  America,  the  restrictions  of  the  feudal  system 
upon  the  free  alienation  of  lands  have  never  existed  to  a 
great  extent.  Tlie  first  English  settlers  of  the  colonies,  es- 
pecially at  the  north,  leaving  the  mother  country  at  a  time 
when  soccage  tenures  had  almost  entirely  displaced  the 
pure  feud,  and  coming  from  the  ranks  of  society  which  had 
most  sorely  felt  the  \veight  of  the  feudal  bonds,  had  every 
reason  to  secure  to  themselves  and  their  descendants  an  im- 
munity from  these  burdens.  Still,  as  our  law  is  directly 
derived  from  the  English,  we  have  not  escaped  the  traces 
of  the  restrictive  influence.  With  us  alienation  is  perfectly 
free,  because  lauds  are  allodial ;  but  the  involuntary  aliena- 
tion; or  the  seizure  and  sale  of  real  property  for  the  debts 
of  the  owner,  yet  shows  the  old  preference  of  the  law  for 
lands  over  chattels.  By  the  American  law,  a  judgment 
creditor  must  first  endeavor  to  satisfy  his  execution  out 
from  the  personal  property,  before  he  can  have  recourse  to 
the  soil.  It  may  be  true  that  this  seems  to  be  a  natural 
and  just  provision,  that  it  is  equitable  to  deprive  a  debtor 
first  of  his  movable  goods  and  products  of  the  soil,  before 
we  strip  him  of  the  very  property  out  of  which  other  prod- 
ucts and  chattels  can  be  raised ;  it  may  be  true  also  that 
the  Roman  law  demanded  of  the  creditor  the  same  discrimi- 
nation, but  it  is  no  less  true  that  we  derive  the  distinction 
'  y  direct  descent  from  the  old  spirit  and  rules  of  the  law  of 
feuds. 

§  482.  3.  Inheritance  and  Succession.  The  rules  for  the 
descent  and  inheritance  of  lauds  introduced  by  the  feudal 
system  were  very  peculiar,  and  still  continue  in  marked 


286  THE   FEUDAL    SYSTEM. 

contrast  with  those  which  obtained  under  the  Roman  law. 
Every  system  of  jurisprudence  provides  for  some  disposition 
of  the  effects  of  a  deceased  person,  hut  in  the  details  of  the 
succession  there  is  an  endless  variation  in  different  nations. 
The  laws  of  succession  in  Europe  and  America  may,  how- 
ever, be  correctly  classed  in  two  groups ;  those  which  derive 
their  spirit  from  the  legislation  of  Rome,  and  those  which 
are  rather  allied  to  the  system  of  feuds.  In  those  countries 
where  feudalism  has  largely  deposited  its  fruits  in  the  mass 
of  national  customs,  we  shall  find  the  marked  contrast  be- 
tween the  succession  of  movables,  and  the  inheritance  of 
lands.  The  one  partake  of  the  Roman,  the  other  of  the 
barbarian  spirit.  By  the  Roman  law,  as  all  property  was 
treated  in  the  same  manner,  the  succession  of  both  real  and 
personal  was  regulated  by  the  same  rules.  By  the  feudal 
law,  land  only  is  inherited  by  the  heir ;  he  takes  no  right 
to  or  property  in  the  goods  and  chattels  in  his  capacity  as 
heir.  By  the  Roman  law,  any  person  might  appoint  an 
heir,  and  in  default  of  such  appointment,  the  law  made  the 
designation.  The  heir  thus  chosen  succeeded  to  all  the 
property  of  the  deceased,  of  every  description,  whether  real 
or  personal,  and  at  the  same  time  was  charged  with  all  of 
the  deceased's  obligations  and  debts,  which  he  was  com- 
pelled to  discharge,  even  if  they  were  greater  than  the  value 
which  fell  to  him  in  the  succession.  The  law  thus,  in  the- 
ory, continued  the  person  of  the  deceased  in  the  person  of 
the  heir.  Tliese  two  principles,  that  the  heir  was  designat- 
ed by  the  deceased,  and  was  a  prolongation  of,  or  successor 
to,  his  existence,  were  the  distinguishing  features  of  the 
Roman  legislation.  By  it  an  estate  did  not  necessarily  de- 
scend, in  our  acceptation  of  the  term,  from  ancestor  to  heir, 
but  the  ancestor,  by  his  own  act,  pointed  out  some  individ- 
ual, whether  his  son  or  another  person,  who  was,  in  theory, 
to  continue  his  life  and  being,  and  receive  his  property,  and 
perform  his  duties  The  heir  was  eadem  jpersona  cum  de- 
fwncto.    This  practice  of  casting  unknown  obligations  upon 


ON   INHERITANCE   AND   SUCCESSION.  287 

a  stranger,  and  compelling  him  to  discharge  them,  whether 
or  not  he  received  sufficient  property,  was  certainly  attend- 
ed with  hardship  and  injustice.  The  rule  was  relaxed,  by 
allowing  the  heir  a  certain  time  to  deliberate,  to  inquire 
into  the  condition  and  amount  of  the  estate  which  had 
fallen  to  him,  before  he  determined  to  accept  the  succession, 
but  he  must,  within  the  time,  either  accept  absolutely  or 
refuse  absolutely.  Further  progress  and  later  legislation 
removed  all  hazard,  by  giving  to  the  nominated  heir  what 
was  called  the  benefit  of  an  mventory,  that  is,  a  schedule 
and  valuation  of  the  property  of  the  deceased  was  made, 
and  the  heir  was  only  held  accountable  for  debts  equal  to 
the  total  amount  of  the  inventory. 

§  483.  We  can  see  in  these  provisions  exactly  the  con- 
dition of  administrators  by  the  law  of  England  and  Amer- 
ica, with  the  exception  that  they  take  only  the  personal 
property  of  a  decedent.  Indeed,  English  jurisprudence 
early  borrowed  its  rules  for  the  succession  of  movables  from 
the  Roman  law.  Feudalism  and  the  feudal  spirit,  passing 
by  the  chattel  as  too  unimportant  for  its  notice,  left  it  to  be 
administered  by  the  ecclesiastic  courts,  which,  in  their  sj)ir- 
itual  character,  assumed  jurisdiction  over  the  estates  of  the 
dead,  except  so  far  as  they  were  debarred  by  the  rules  of 
the  feud  respecting  real  property ;  and  these  courts,  consist- 
ing of  ecclesiastics  versed  in  the  Roman  law,  of  course  di*ew 
from  it  their  methods  and  maxims. 

Thus  there  grew  up  side  by  side  in  England,  two  sys- 
tems of  succession,  the  one  relating  to  movables,  and  follow- 
ing the  laws  of  Rome,  the  other  confined  to  land,  and 
breathing  the  spirit  of  feudalism.  Under  the  first  system, 
adopted  as  well  in  America  as  in  England,  the  administra- 
tor becomes  owner  of  all  the  goods  and  chattels,  the  prop- 
erty of  all  kinds  except  real,  which  were  left  by  the  dece- 
dent. I  say  he  becomes  owner,  not  absolute  indeed,  for  he 
is  in  a  measure  a  trustee,  but  he  holds  the  property  by  an 
absolute  title,  and  all  other  persons  to  whom  it  is  afterward 


288  THE    FEUDAL    SYSTEM. 

transmitted,  whether  creditors,  or  relatives,  derive  their  title 
directly  from  him,  and  not  from  the  deceased  owner.  At 
the  same  time  the  administrator  has  the  benefit  of  an  inven- 
tory, and  is  personally  responsible  for  the  debts  of  the  de- 
cedent, to  the  amount  of  that  appraisement.  This  was  the 
Koman  law  of  succession  for  all  property,  and  is  our  law  as 
to  goods  and  chattels. 

§  484.  The  feudal  rules  of  inheritance  were  far  different 
By  that  system  the  ancestor  had  nothing  to  do  with  the  ap- 
pointment of  an  heir,  nor  could  he  prevent,  or  remove  him 
from  his  condition.  He  might,  after  the  statute  of  wills, 
devise  all  his  unentailed  lands  to  others,  and  thus  deprive 
his  successor  of  all  beneficial  interest  in  the  property,  but 
he  remained  the  heir  still.  He  was  a  person  related  in 
blood  to  the  ancestor,  and  thus  entitled  to  succeed,  on  his 
death,  to  all  his  immovable  property.  He  did  not  represent 
the  ancestor,  he  was  not  a  prolongation  of  his  being;  he 
represented  the  first  donee  or  recipient  of  the  fief  which  had 
been  given  to  the  vassal  or  tenant  and  his  heirs.  So  the 
particular  heir  to  whom  the  land  descended  had  no  connec- 
tion with  his  immediate  ancestor,  and  in  the  theory  of  the 
law,  no  need  of  him,  except  as  he  was  obliged  to  trace  his 
descent  through  liim  as  one  of  the  steps  up  to  the  original 
and  first  donee  of  the  fief.  As  the  heir  did  not  represent 
the  ancestor,  so  he  took  the  land  from  him  entirely  dis- 
charged and  free  from  all  debts;  while  receiving  and  enjoy- 
ing the  property  he  was  not  called  upon  to  pay  a  farthing 
of  indebtedness,  or  to  perform  any  obligations  entered  into 
by  the  decedent.  In  tliis  harsh  rule  the  feudal  spirit  was 
logical,  it  worked  on  undeviatingly  from  its  premises.  The 
fief  was  originally  given  to  the  first  donee  to  be  enjoyed  by 
him  during  liis  life,  and  after  his  death  to  be  used  by  the 
next  person  in  the  line  of  blood  relationship,  and  so  on  in- 
definitely, until  heirs  had  failed.  Each  particular  tenant 
was,  during  his  possession,  in  theory  only  a  hfe  owner,  and 
the  expectant  heir  stood  behind  him,  entitled  to  receive  the 


FEUDAL  RULES  OF  INHERITANCE.  289 

fief  from  his  hands  as  complete  as  it  had  been  received  by 
him.  It  is  true,  the  ancestor  was  permitted  to  ah' en  or  de- 
vise aw  a  J  the  whole  property,  but  these  were  innovations 
upon  the  strict  logic  of  the  feudal  law. 

§  485.  After  alienation  of  lands  became  free,  the  severity 
of  this  rule  exempting  the  land  which  had  descended  to 
the  heir  from  being  appropriated  to  the  payment  of  the 
ancestor's  debts  was  modified.  It  was  too  harsh,  too  mani- 
festly opposed  to  common  justice,  for  the  gradually  advanc- 
ing spirit  of  enterprise  to  endure,  and  the  lands  first  became 
chargeable,  after  a  descent,  with  the  debts  of  record  against 
the  deceased  owner.  These  obligations  created  a  specific 
lien  upo^he  very  land,  and  the  heir  took  it  subject  to  that 
lien.  J^^pE^ard  the  law  allowed  debts  evidenced  by  writ- 
ings i^^^^a  seal  in  which  the  heir  was  e^|:essly  men- 
tioned (as  if  the  ancestor  in  a  bond  should  bin^Bmmself  and 
his  heirs  to  the  payment  of  a  sum  of  money),  to  be  collected 
from  the  inherited  estate.  The  reason  given  for  this  relaxa- 
tion was,  that  the  heir  was  supposed  to  have  assented  to 
the  claim,  and  thus  personally  incurred  a  liability,  by 
being  mentioned  in  the  written  instrument. 

§  486.  In  America  the  principles  of  the  feudal  inherit- 
ance are  still  preserved  in  the  legislation  of  nearly  all  the 
States.  The  land  descends  to  the  heir,  a  person  related  in 
blood  to  the  ancestor,  and  the  movables  are  taken  by  an 
administrator.  The  preference  for  lands,  to  the  unjust  ex- 
tent of  leaving  them,  in  the  heir's  ownership  without  calling 
upon  him  to  pay  the  ancestor's  debts,  is  not  retained ;  still 
the  distinction  is  preserved  so  far  as  to  make  the  chattels 
the  first  fund  to  which  a  creditor  must  resort  for  the  pay- 
ment of  all  debts,  but  after  these  are  exhausted,  the  heir 
must  either  give  up  his  inheritance,  or  pay  the  obligations 
himself.  In  no  case,  however,  would  he  be  liable  to  more 
than  the  value  of  the  land  which  descended  to  hhn. 

I  have  here  described  the  course  which  property  takes 
only  when  the  last  owner   died   intestate.      He  has  the 
19 


290  THE    FEUDAL    SYSTEM. 

power,  botli  in  England  and  America,  to  alter  that  disposi- 
tion bj  a  last  will,  and  to  charge  the  land  primarily  with 
debts,  or  to  convert  it  into  money,  or  to  deal  with  it  at  his 
pleasure. 

There  were  some  striking  features  of  the  feudal  law  of 
descent  relating  to  the  order  of  succession,  in  other  words, 
determining  who  was  the  heir  in  all  cases.  These  rules,  or 
canons,  are  founded  upon  the  theory  that  an  heir  was  the 
rejiresentative  and  relation  in  blood  of  the  original  donee 
of  the  fief.  But  I  have  already  sufficiently  illustrated 
this  peculiarity  of  the  law  of  feuds,  and  need  not  here 
enter  upon  any  critical  examination  or  statement  of  the 
various  intricate  rules  which  grew  out  from  tl^^undameu- 
tal  idea.  ^^^^^ 

§  487.  ^^ave  thus  imperfectly  stated  the  orig^^T^ory, 
and  natui^Pf  feuds  as  they  assumed  the  character  of  posi- 
tive laws  and  institutions  regulating  the  status  of  individ- 
uals, and  the  ownership,  transmission,  and  inheritance  of 
real  property,  and  some  of  the  important  principles  of  law 
which  modern  English  and  American  jurisprudence  has  de- 
rived from  this  ancient  origin,  and  have  described  some  of 
the  grand  features  which  feudalism  has  stamped  deeply  into 
our  codes.  It  has  not  been  my  purpose  to  speak  here  of 
the  feudal  system  as  an  element  in  the  general  progressive 
civilization  of  Europe,  or  to  notice  its  effect  upon  the  indi- 
vidual or  the  nation,  otherwise  than  as  that  effect  was  di- 
rectly connected  with  the  body  of  municipal  law,  which 
was  the  framework  of  the  vast  structure.  I  will  not,  how- 
ever, close  this  chapter  without  a  ])assing  reference  to  the 
character  of  feudal  civilization,  which  had  the  same  general 
features,  during  its  maturity,  wherever  the  system  pre- 
vailed. 

§  488.  Upon  the  lower  orders  of  society,  the  peasanti-y, 
the  laborers,  the  traders,  and  artisans,  there  can  be  no  ques- 
tion but  that  feudalism  rested  with  a  deadly  weight.  By 
them  it  was  abhorred  and  hated  with  a  terrible  animosity 


INFLUENCE   OF   FEUDALISM   ON    SOCIETY.  291 

It  gave  them  do  rights,  it  hindered  their  attempts  to  rise 
above  their  condition,  it  bound  their  hands  and  checked 
their  endeavors  at  progress  and  culture ;  it  despised  all 
trade,  commerce,  intercommunication  ;  it  was  destructive 
of  all  enterprise  ;  it  isolated  communities,  cutting  up  the 
nations  into  separate  groups  of  peoples  ignorant  of  each 
other,  without  intercourse  or  sympathy  ;  it  struck  a  blow  at 
the  very  root  of  nationality  ;  it  reduced  the  universal  alle- 
giance to  the  government  and  the  laws  to  a  vain  shadow, 
substituting  in  its  place  the  feudal  allegiance  of  vassals  to 
lords,  and  of  serfs  to  masters  ;  it  rendered  the  operation  of 
general  laws  throughout  a  kingdom  a  mere  impossibility. 
How  can  these  destructive  influences  and  effects  upon  so- 
ciety, and  especially  upon  the  lower  orders,  be  more  plainly 
evidenced,  than  by  the  change  which  has  come  over  the 
meaning  of  feudal  terms  ?  What  volumes  of  hate,  bitter, 
concentrated,  and  enduring,  against  the  tyrannous  system, 
and  the  dominant  masters,  are  treasured  up  in  the  present 
use  of  the  words  "  vassal  "  and  "  villain,"  Vassal  was  once 
an  honorable  term,  gladly  borne  by  the  proudest  and  no- 
blest in  the  nation  ;  it  has  sunk  into  disgrace,  and  the  seal 
of  a  people's  contempt  has  been  stamped  upon  it,  as  it  now 
describes  the  bondman,  the  servant,  the  low,  grovelling 
creature  who  lives  upon  the  favor  of  his  master.  The  feu- 
dal "  villain  "  was  only  a  laborer,  poor  indeed  and  debased 
in  the  social  degree,  and  despised  by  his  superiors,  but  hon- 
est, and  the  great  producer  from  the  soil.  The  modern  vil- 
lain is  the  person  capable  and  guilty  of  all  crimes  of  the 
greatest  atrocity.  Thus  has  been  crystallized  into  our  lan- 
guage the  estimation  in  which  the  people  regarded  the 
feudal  system.  T\or  has  this  hate  been  less  plainly  exhibit- 
ed in  France.  The  bloody  revolution,  which  swept  away 
the  king,  the  nobles,  and  all  the  ruling  orders,  was  but  the 
outbreak  of  this  long  smothered  fii'e ;  it  was  the  uprising 
Df  the  lower  orders,  the  old  roturiers,  those  down-trodden 
serfs,  whom  the  iron  power  of  feudalism  had  for  centuries 


292  THE   F±.UDAL    SYSTEM. 

ciTished  td^  the  earth  ;  the  old  Gaulic  element  in  fierce  revolt 
against  their  barbarian,  Germanic  masters. 

§  489.  Among  the  upper  classes,  the  lords  and  military 
tenants,  the  inflnence  of  the  system  was  more  beneficial. 
"While  it  encouraged  petty  wars  and  turbulent  outbreaks, 
by  this  very  means,  as  well  as  by  the  relation  of  superior 
and  vassal,  it  developed  a  spirit  of  self-reliance,  of  independ- 
ence, of  resistance  to  illegal  authority.  At  the  same  time 
It  cultivated  many  of  the  milder  elements  of  individual 
character, — personal  honor,  devotion,  loyalty,  and  faith. 
Here,  too,  woman  rose  out  from  a  condition  of  partial  servi- 
tude, into  a  position  of  honor  and  equality  with  man.  The 
seclusion  of  the  castles  and  mansions  promoted  the  inter- 
course of  the  husband  and  father  with  his  wife  and  children  ; 
the  family  relations  were  softened,  and  the  family  ties 
strengthened  ;  the  wife  became  her  Imsband's  companion, 
equal,  and  friend  ;  love  advanced  from  a  passion  to  a  senti- 
ment ;  the  poetry  and  other  literature  of  the  times  sung  and 
spoke  of  the  graces,  charms,  and  goodness  of  woman.  We 
must  not  cany  back  our  manners  into  the  11th,  12th,  and 
13th  centuries,  and  expect  to  find  the  same  refinement  of 
intercourse  between  the  sexes,  for,  indeed,  most  of  the  songs 
and  poems  of  the  troubadours  and  trouveurs,  with  which 
knights  and  ladies  were  amused,  are  too  gross  to  be  read 
now,  except  as  mere  curiosities ;  yet  still  it  is  true  that  un- 
der the  feudal  system  woman  was  greatly  advanced  in  her 
social  and  domestic  position, 

§  490.  To  the  general  civilization,  feudalism  has  doubt- 
less bequeathed,  although  it  did  not  originate,  the  germ  of 
the  idea  that  the  people,  the  whole  community,  should  in- 
terfere in  pronouncing  judgment  between  litigant  parties, 
that  is,  the  right  of  being  tried  by  one's  peers.  While  the 
centuries  from  the  5th  to  the  14th  had  nothing  similar  in 
form  to  our  trial  by  jury,  as  I  have  shown,  yet  the  ternto- 
rial  feudal  coiu-ts,  which  were  held  by  each  suzerain,  were 
attended  by  the  holders  of  fiefs,  or  pares,  who  took  a  part 


CAUSES    OF   THE   DECLINE   OF   FEUDALISM.  293 

in  the  actual  administration  of  justice  between  individ- 
uals. 

§  491.  To  the  same  origin  we  must  refer  the  admitted 
modern  principle  of  legislation,  that  no  man  is  bound  by 
laws,  or  obliged  to  pay  taxes,  to  which  he  has  not  by  im- 
plication consented.  The  feudal  relation  of  lord  and  vassal 
was  fixed  and  certain  ;  the  government  was  in  the  hands  of 
the  suzerain,  and  his  rights  and  obligations,  as  well  as  those 
of  his  inferiors,  were  determined,  and  by  the  feudal  theory 
he  could  not  arbitrarily  add  to  his  own  demands,  or  inft'inge 
upon  the  persons  and  territorial  rights  of  his  subjects.  All 
this  was  doubtless  often  violated,  force  continually  broke  in 
upon  the  nicely  adjusted  fabric,  but  the  principle  was  yet 
there,  imbedded  in  the  very  foundations  of  the  feudal  system. 

§  492.  This  mere  glance  at  the  results  of  feudalism  upon 
society,  at  its  character  as  a  simple  civilizing  agent,  is  suffi- 
cient for  my  present  purpose.  Its  direct  effects  upon  the 
lower  orders  were  entirely  evil.  Among  the  upper  classes 
it  promoted  sentiments  of  lienor  and  fidelity,  of  independ- 
ence and  self-assertion  ;  it  raised  woman  to  a  higher  level 
than  she  had  before  occupied  ;  it  confirmed  the  bonds  of 
home  and  family ;  and  it  has  left  to  us  some  invaluable  prin- 
ciples of  political  organization  and  government.  Those 
writers  who  regard  only  its  destructive  influence  upon  the 
peasantry,  see  in  it  nothing  but  injustice,  rapine,  tyranny. 
Those  who  look  only  at  the  examples  of  personal  faith  and 
loyalty  which  it  furnishes,  find  there  a  nearly  perfect  socie- 
ty, in  which  man's  highest  nature  was  fully  developed,  and 
from  which  we,  in  modern  times,  with  oui-  trade  and  manu- 
factures and  commerce  and  material  advancement,  have 
sadly  degenerated.  How  completely  both  of  these  classes 
of  writers  are  in  error,  I  think  it  needs  no  more  to  show. 

§  493.  The  causes  of  the  abandonment  and  decline  of 
the  feudal  system  were  manifold.  Some  of  them  afiected  it 
as  a  mere  system  of  municipal  law,  others  as  a  form  of  civ- 
ilization and  social  order. 


294  THE   FEUDAL   SYSTEM. 

Among  them  we  may  mentiou  the  decay  of  the  purelj 
military  spirit  of  the  relation  between  lord  and  vassal,  and 
the  consequent  change  from  actual  service  to  the  payment 
of  pecuniary  escuages.  This  greatly  loosened  the  tie  of 
personal  attachment,  dependence,  and  protection  between 
the  superior  and  the  possessors  of  liefs,  which  w*as  the  very 
inner  life  of  the  whole  system. 

Another  destructive  element  was  the  gradual  though 
slow  encroachment  of  the  Roman  law.  This  form  of  juris- 
prudence, as  we  have  shown,  though  long  overshadowed 
and  almost  hidden,  was  never  utterly  desti'oyed,  and  its 
marvellous  vitality  preserved  it  through  the  centuries  of 
feudal  supremacy,  until  it  began  to  act  on  the  aggressive. 
Its  influence  was  less  rapidly  and  less  thoroughly  felt  in 
England  than  on  the  Continent,  yet  there  the  Eoman  law 
has  accomplished  far  more  than  English  lawyers  have  been 
ever  willing  to  admit. 

A  third  element  of  decay  was  the  growth  and  spreading 
influence  of  free  and  maritime  cities,  whose  increasing  com- 
merce demanded   and  introduced   codes  of  laws  through 
Europe  utterly  foreign  and  antagonistic  to  the  feudal  civili 
zation. 

§  494.  But  all  these  causes,  and  many  more  minor  ones, 
are  included  in  the  general  fact  that  society,  in  the  steady 
progress  of  culture,  in  the  slow  development  of  ideas,  in  the 
continual  onward  movement  from  the  germ  toward  the 
fruit,  which  marks  every  system  of  jurisprudence  possessed 
by  a  people  not  absolutely  stationary,  which  characterizes 
every  civilization  not  effete,  was  growing  beyond  the  sharp- 
ly defined  rules  and  strict  relations  of  feudal  institutions. 
Strong  as  were  those  ancient  bonds,  having  the  prestige  of 
power,  of  authority,  of  position,  they  must  one  by  one 
burst,  and  give  way  to  the  irresistible  pressure  from  within 
the  body  politic.  So  have  we  seen  a  tree  sending  its  trunk 
up  through  a  fissure  in  a  rock  of  vast  size  and  weight.  Once 
the  slender  sapling  was  nicely  fitted  in  the  stony  jaws  of 


CONCLUSION.  295 

the  narrow  crevice,  but  the  gentle  currents  of  ascending  sap 
from  year  to  year  deposited  their  small  particles  upon  the 
body  of  the  tree,  and  the  natural  vitality  of  the  growing  or- 
ganism, even  through  this  invisible  movement,  exerted  a 
force  so  overwhelming,  that  the  solid  rock  was  rent  in  its 
place,  and  the  noble  oak  stands  triumphant  amidst  the  dis- 
severed fragments. 


CHAPTEE  m. 

THE     ROMAN     LAW. 

Tu  regere  Imperio  populos,  Eomane,  memento  • 
Hae  tibi  erunt  artes ;  pacisque  imponere  morem, 
Parcere  subjectis,  et  rtebellare  superbos. 

(^NEiD.,  lib.  vi.,  851.) 

§  495.  The  Roman  law  affords  the  most  complete  and  in- 
structive example  of  the  rise,  full  development,  decline,  and 
death  of  a  system  of  national  jm-isprudence.  The  value  of 
the  examj)le  consists  in  the  illustration  which  it  furnishes 
of  the  noraial  method  of  a  legal  growth,  and  also  in  the  ex- 
cellence of  the  legislation  itself  which  was  the  final  product 
of  the  maturity  of  the  Roman  organizing  power,  I  have 
already,  in  Part  I.  of  this  work,  exhibited  the  essential  fea- 
tures of  this  development,  the  formative  characteristics  of 
this  law,  and  have  shown  them  to  have  been  identical  in 
principle  with  those  of  England  and  America. 

§  496.  The  object  of  the  present  chapter  is  to  give  a 
summary  of  the  jurisprudence  itself,  so  far  as  it  affected  the 
private  rights  and  duties  of  the  people.  With  purely  polit- 
ical regulations  I  sliall  not  interfere,  except  so  far  as  may 
be  necessary  to  explain  the  sources  and  character  of  those 
which  governed  the  actions  of  individuals  toward  each 
other.  The  limits  of  the  work  do  not  permit  me  to  trace 
the  successive  changes  in  the  actual  legislation  tlirough  the 
long  interval  from  the  time  when  its  first  landmark  was 
fixed  in  the  XII.  Tables,  to  the  epoch  when  it  was  summed 


THE   ARISTOCRATIC   PERIOD.  297 

up  in  the  compilations  of  Justinian.  During  these  centuries 
the  municipal  law,  like  the  commonwealth  itself,  passed 
through  many  phases.  Gibhon,  in  his  History  of  the  De- 
cline and  Fall  of  the  Roman  Empire,  and  after  him  Prof. 
Hugo,  in  his  History  of  the  Roman  Law,  divide  this  con- 
tinuous life  into  four  periods ;  the  first,  from  the  founding 
of  Rome  to  the  XII.  Tables ;  the  second,  from  the  XII.  Tables 
to  the  time  of  Cicero ;  the  third,  from  Cicero  to  the  Emperor 
Alexander  Severus ;  and  the  fourth,  from  Alexander  Seve- 
rus  to  Justinian.  I  do  not  propose  to  follow  this  division  in 
its  minuteness,  but  to  give  first,  a  sketch  of  the  Roman  le- 
gislation in  its  primitive  state  of  rudeness  and  arbitrariness, 
before  the  Praetors  had  broken  down  the  old  lex  civilis^  and 
built  up  a  jurisprudence  based  upon  principles  of  equity 
and  justice ;  and  secondly,  to  describe  that  law  in  its  per- 
fected state,  as  it  emerged  from  the  hands  of  legislating 
magistrates  and  enlightened  jurisconsults,  and  has  thus  been 
handed  down  to  us,  preserved  in  the  codification  of  Justin- 
ian. These  may  appropriately  be  styled  the  Aristocratic, 
and  the  Philosophic  and  Christian  periods.  A  complete 
history  would  require  that  I  should  set  forth  in  detail  the 
successive  stages  of  the  progress  through  which  the  system 
marched,  the  several  influences  which  were  brought  to  bear 
upon  it,  and  the  character  and  labors  of  the  principal  legis- 
lators, who,  from  time  to  time,  M'ere  the  instruments  in 
moulding  and  perfecting  it.  I  shall,  however,  pass  by  all 
of  this  interesting  detail,  and  content  myself  with  some  of 
the  results  alone,  of  this  advancing  civilization. 

THE    ARISTOCRATIC    PERIOD. 

§  497.  As  an  introduction  to  a  sketch  of  the  municipal 
law,  it  is  proper  to  give  an  outline  of  the  primitive  social 
and  political  organization  of  the  Roman  commonwealth.  I 
quote  the  words  of  Dr.  Arnold.  "The  people  or  citizens  of 
Rome  were  divided  into  the  three  tribes  of  the  Ramnenses, 


29S  THE    ROMAN    LAW. 

Titienses,  and  Liiceres.  Each  of  these  tribes  was  divided 
iuto  ten  smaller  bodies  called  curioe,  so  that  the  whole  peo- 
ple consisted  of  thirty  curiae.  I  have  said  that  each  tribe 
was  divided  into  ten  curiae  ;  it  would  be  more  correct  to 
saj  that  the  union  of  ten  curiae  formed  the  tribe.  For  the 
state  grew  out  of  the  junction  of  certain  elements,  and  these 
were  neither  the  tribes  nor  the  curiae,  but  the  gentes  or 
houses,  which  made  up  the  curiae.  The  first  element  of  the 
whole  system  was  the  gens,  or  house,  a  union  of  several 
families  who  were  bound  together  by  the  joint  perfoiinance 
of  certain  religious  rites.  Actually  when  a  system  of  houses 
has  existed  within  historical  memory,  the  several  families 
who  composed  a  house  were  not  necessarily  related  to  one 
another  ;  they  were  not  really  cousins  more  or  less  distant, 
all  descended  from  a  common  ancestor.  But  there  is  no 
reason  to  doubt  that  in  the  original  idea  of  a  house,  the 
bond  of  union  between  its  several  families  was  truly  same- 
ness of  blood.  *  *  *  *  Thus  the  state  being  made  up 
of  families,  and  every  family  consisting  from  the  earliest 
times  of  members  and  dependents,  the  onginal  inhabitants 
of  Rome  belonged  all  to  one  of  two  classes  ;  they  were 
either  members  of  a  family,  and  if  so,  members  of  a  house, 
of  a  curia,  of  a  tribe,  and  so,  lastly,  of  the  state ;  or  they 
were  dependents  on  a  family,  and  if  so,  their  relation  went 
no  further  than  the  immediate  aggregate  of  the  families, 
that  is,  thje  house  ;  with  the  curia,  with  the  tribe,  and  with 
the  state,  they  had  no  connection.  These  members  of  fam- 
ilies were  the  original  citizens  of  Rome ;  these  dependents 
on  families  were  the  original  clients.  The  idea  of  clientship 
is  that  of  a  wholly  private  relationship ;  the  clients  were 
something  to  their  respective  patrons ;  but  to  the  state  they 
were  nothing.  But  whenever  states  composed  in  this  man- 
ner, of  a  body  of  houses  with  their  clients,  had  been  long 
established,  there  grew  up,  amidst  or  close  beside  them, 
created  in  most  instances  by  conquest,  a  population  of  a 
very  distinct  kind.     Strangers  might  come  to  live  in  the 


CHARACTER   OF   THE    PRIMmVE    LAW.  299 

land,  or,  more  commonly,  the  inhabitants  of  a  neighboring 
district  miglit  be  conquered  and  nnited  with  their  conquer- 
ors as  a  subject  people.  Now  this  population  had  no  con- 
nection with  the  houses  separately,  but  only  with  the  state, 
composed  of  those  houses  ;  this  was  wholly  a  political,  not  a 
domestic  relation  ;  it  united  personal  and  private  liberty 
with  political  subjection.  This  inferior  population  possessed 
property,  regulated  their  own  municipal  as  well  as  domestic 
affairs,  and  as  freemen  fought  in  the  armies  of  what  was 
now  their  common  country.  But  strictly  they  were  not  its 
citizens  ;  they  could  not  intermarry  with  the  houses  ;  they 
could  not  belong  to  the  state,  for  they  belonged  to  no  house, 
and  therefore  to  no  curia  and  no  tribe ;  consequently,  they 
had  no  share  in  the  state's  government,  nor  in  the  state's 
property.  Such  an  inferior  population,  free  personally,  but 
subject  politically,  not  slaves,  yet  not  citizens,  were  the 
original  jplebs^  the  commons  of  Home."  (Arnold's  History 
of  Eome,  pp.  10,  11.) 

I  do  not  mean  to  speak  further  of  the  early  political  or- 
ganization of  the  Roman  commonwealth.  I  pass  by  the 
constitution  and  powers  of  the  Senate,  of  the  assemblies  of 
the  curiae,  of  the  assemblies  of  the  ^Icds  in  their  tribes  ;  the 
character  and  force  of  the  leges  voted  by  the  citizens  and  of 
the  pleMsoites  voted  by  the  commons.  I  also  pass  by  the 
long  and  fierce  contest  for  political  power  between  the 
citizens  and  the  commons ;  the  increasing  authority  of  the 
latter  ;  the  gradual  breaking  down  of  the  restrictions  upon 
their  fi*ee  voice  in  public  affairs,  and  the  compromise  be- 
tween the  two  orders,  resulting  in  a  revision  of  the  constitu- 
tion and  of  the  private  municipal  law,  and  the  collation  of 
tlie  latter  in  the  XII.  Tables.  These  topics  are  certainly  of 
great  interest,  but  are  foreign  to  the  design  of  this  book. 

§  498.  During  these  primitive  times  the  municipal  law 
of  Rome  was  rude,  severe,  and  arbitrary.  It  was  in  the 
strict  sense  of  the  term,  Zex  Civilis.  Its  origin  must  be 
found  in  the  customs  of  the  tribes  which  united  to  form  the 


300  THE    ROMAN    LA-\V, 

Roman  state.  The  marked  ger)ius  of  the  Eoman  people  for 
oi'iraniziiifi:  had  taken  these  tribal  ciist  )ms  and  consolidated 
thein  into  a  body  of  public  institutions  and  private  rules, 
which  were  regarded  with  the  must  profound  veneration. 
The  decemviral  code  of  the  XII.  Tables  was  a  compilation 
of  this  preexisting  legislation,  and  it  continued  as  the  basis 
of  the  Roman  jurisprudence  down  to  a  late  period  of  the 
republic. 

§  499.  The  general  character  of  this  legal  system  was 
marked  by  a  wonderful  severity,  and  opposition  to  all  tbat 
is  understood  as  naturally  right  and  equitable.  M.  Trop- 
long  says  :  "  The  civil  law  of  the  Romans  at  its  origin  was 
imprinted  with  that  theological  and  aristocratic  rudeness 
inseparable  from  heroic  epochs.  It  sprang  from  the  bosom 
of  a  religious,  political,  and  niilitary  patriarchate,  who  en- 
graved on  it  their  marks  of  conquest,  their  instincts  of  im- 
mobility, and  the  formalistic,  jealous,  dominating  genius, 
nourished  in  the  sombre  school  of  the  Etruscan  theocracy. 
We  shall  search  in  vain  in  this  law  for  that  efficacious  ac- 
tion <^)f  natural  equity,  and  that  voice  of  humanity  which 
speaks  so  loud  among  civilized  peoples.  Tlie  simple  notion 
of  justice  and  injustice  is  yet  enveloped  by  institutions 
which  sacrifice  nature  to  political  necessity,  innate  truth  to 
artificial  laws,  liberty  to  sacramental  formulas.  In  the  civil 
order,  as  in  the  state,  Rome  only  sought  to  form  citizens, 
and  the  more  she  yielded  to  them  the  privileges  and  grandeur 
of  this  eminent  title,  the  more  she  demanded  from  eacb  that 
he  should  make  sacrifices  for  his  country,  trusting  that,  out 
of  a  regard  for  public  interests,  he  would  abdicate  his  affec- 
tions, his  will,  and  even  his  reason." 

§  500.  I  shall  now  give  a  brief  outline  of  this  primitive 
Ikc  civ/lis,  so  far  as  it  affected  private  rights  and  duties. 
This  municipal  law  may  be  divided  into  four  parts  :  I.,  that 
which  relates  to  persons ;  II.,  that  which  relates  to  things, 
as  the  objects  of  the  right  of  property  ;  III.,  that  which  re- 
hitffi  to  obligations  ;  IV.,  that  which  relates  to  actions.     A.8 


OF   PERSONS — SLAVES — FKEEMEN.  301 

I  have  sufficiently  explained  the  last  of  these  divisions  in 
the  former  part  of  this  work,  it  will  be  omitted  from  this 
chapter. 

I.    OF  PERSONS. 

§  501.  The  law  paid  a  careful  regard  to  the  status,  or 
civil  condition,  of  all  persons  within  the  commonwealth. 
This  status  had  refei"ence  to  the  capacity  of  the  individual 
to  acquire  and  enjoy  rights,  and  was  separated  into  several 
gradations,  ranging  from  the  one  in  which  no  civil  rights 
were  enjoyed,  to  the  one  which  bestowed  all  the  privileges 
and  immunities  of  the  Roman  citizen. 

§  502.  The  two  grand  divisions  of  persons  were,  slaves, 
and  freemen. 

1.  Of  Slaves.  The  Roman  slaves  in  primitive  times 
possessed  no  civil  rights  ;  they  were  the  absolute  property 
of  the  master,  who  held  a  power  supreme  over  them,  ex- 
tending even  to  life.  The  slaves  were  either  captured  as 
enemies  and  reduced  to  servitude,  or  were  insolvent  debtors 
sold  by  their  creditors,  or  condemned  criminals,  or  the  chil- 
dren of  slave  mothers  ;  for  the  Roman  law  from  the  outset 
adopted  the  maxim  Partus  sequHur  ventrem^  the  condition 
of  the  mother  determines  that  of  the  offspring.  Masters 
might  manumit  their  slaves,  either  by  a  public  solemn  act 
before  a  magistrate,  or  by  the  provisions  of  a  last  will  and 
testament. 

§  503,  2.  Of  Freemen.  All  persona  not  in  the  condi- 
tion of  servitude,  occupied  the  advanced  status  of  freemen. 
Freedom,  however,  did  not  confer  equal  civil  rights  upon 
its  possessors.  Freemen  were  either  born  so  (ingenui),  or 
had  been  manumitted  from  slavery  (libertini.)  Running 
through  this  general  class  was  a  broad  line  of  demarcation, 
which  separated  them  into  citizens  (cives),  and  strangers 
(peregrini.)  This  division  was  revered  as  of  the  utmost  im- 
portance by  the  primitive  law  ;  in  fact,  it  was  only  for  the 
citizen  that  the  civil  law  existed  ;  he  was  bound  by  its  arbi 


302  THE    ROMAN    LAW. 

trarj  restraints,  and  enjoyed  the  honors  it  conferred  ;  for 
liim  it  contrived  its  unnatural  family,  its  artificial  rights  of 
property,  its  sacramental  forms  of  obligations,  giving  him, 
in  return,  the  coveted  privileges  which  belonged  to  his  order. 

Persons  became  citizens  either  by  birth,  or  by  being 
freed  from  slavery  when  tlie  master  himself  possessed  the 
riglit,  or  by  adoption  into  the  family  of  a  citizen. 

§  504.  As  the  strangere  resident  on  Roman  soil,  and 
forming  a  portion  of  the  commonwealth,  were  not  included 
in  the  embrace  of  the  purely  national  law  (lex  civilis),  and 
took  no  part  in  civil  afi'airs,  they  were  left  to  the  guidance 
of  the  jus  gentiuTTi^  or  natural  law,  so  far  as  it  was  recog- 
nized in  these  semi-barbarous  epochs.  With  them  the  fam- 
ily was  natural ;  property  was  acquired,  held,  and  trans- 
ferred in  a  simple  and  natural  manner ;  obligations  depend- 
ed upon  the  good  faith  and  intention  of  the  parties,  and  not 
upon  arbitrary  forms  of  words. 

§  505.  The  citizens  themselves  were  again  separated 
into  two  classes :  those  acquiring  and  holding  rights  for 
tlieniselves  (those  sui  juris) ;  and  those  acquiring  and  hold- 
ing rights  for  another  (those  alieni  juris.) 

In  treating  of  these  distinctions,  it  is  necessary  to  de- 
scribe that  most  singular  institution,  the  Roman  family, 
with  its  immediate  relations  of  husband  and  wife,  father 
and  child,  and  its  dependent  ones  of  kindred  and  tutelage, 
or  guardianship. 

§  506.  The  man  8ui  juris,  or  paterfamilias,  was  a  citizen 
entirely  independent  of  all  others,  owing  duty  to  none  but 
tlie  state,  who  acquired  and  lield  all  civil  rights  and  all 
property  for  liimself  alone.  All  other  citizens,  including 
all  females,  were  alieni  juris,  were  subjected  to  the  power 
of  another.  This  unnatural  distinction,  which  was  the  basis 
of  the  family  relation,  strongly  characterized  the  primitive 
aristocratic  ideas  of  the  R<jnuin  law,  and  was  tenaciously 
clung  to  for  centuries  of  progress,  nor  was  it  entirelv  thrown 
aaide  until  the  codification  of  Justinian. 


THE    PRIMITIVE    KOaiAN    FAMILY.  303 

§  507.  The  paterfamilias^  or  head  of  the  Koman  family, 
must  be  a  male,  and  but  one  person  could  exercise  ]ns  rights 
at  the  same  time.  His  position  was  in  some  respects  patri- 
archal. Belonging  to  this  headship,  and  conferring  upon 
it  its  great  dignity  in  the  estimation  of  the  old  Roman,  were 
three  remarkable  and  terrible  capacities  or  powers.  These 
were  known  as  jpotestas^  the  power  ;  manus,  the  hand  ;  and 
ma^icipium. 

§  508.  1st.  Potestas. — This  was  separated  into  the  power 
over  slaves,  and  the  paternal  power.  The  fii'st  of  these  has 
been  sufficiently  alluded  to. 

The  paternal  power  of  i\ie  paterfamilias  extended  over 
his  sons  and  their  wives  and  children,  over  his  daughters  until 
their  marriage,  and  over  his  children  by  adoption.  These 
were  all  considered  as  alieni  juris.  This  paternal  right  did 
not  cease  from  the  age,  marriage,  rank,  or  dignity  of  the  son. 
It  terminated  at  the  death  of  the  paterfamilias,  when  each 
son  not  under  age  became  sui  juris,  and  attained  the  head- 
ship of  his  own  family  ;  at  the  loss  by  the  paterfamilias  of 
the  right  of  citizenship  or  of  liberty  ;  at  the  son's  attaining 
the  dignity  o^flamen,  or  the  daughter  that  of  vestal  virgin  ; 
and  after  a  solemn  sale  of  the  son,  thrice  repeated,  followed 
by  enfranchisement,  all  known  as  emancipation.  When  the 
father  thus  freed  his  son  from  the  iron  bands  of  the  family, 
the  latter  lost  all  claim  upon  the  father  ;  he  abandoned  the 
right  of  inheritance ;  he  was  thenceforth  a  stranger  to  his 
own  blood. 

§  509.  This  paternal  power  was  unbounded  through  the 
sphere  of  the  family.  It  extended  to  the  property,  liberty, 
and  lives  of  all  subjected  to  its  dominion.  The  ancient ^a- 
terfamilias  reigned  supreme  in  his  community  of  descend- 
ants. He  was  a  judge  from  whom  lay  no  appeal.  His  son 
who  had  reached  manhood,  who  was  even  married,  was, 
with  his  wife  and  children,  to  all  intents  the  chattel  of  the 
family  head.  All  property  acquired  by  the  descendants 
belonged  to  the  chief.     During  his  lifetime  their  personal 


304  THE    ROMAJf    LAW. 

rights  were  in  abeyance,  and  were  only  enjoyed  for  the 
benefit  of  tlie  stern 2)aterfamiUas. 

§  510.  2d.  Manus. — This  was  the  power  which  the 
pate/'familias  held  over  his  wife,  joined  to  him  by  a  com- 
plete legal  marriage  (comiubium).  For  a  legitimate  mar- 
riage, the  parties  must  be  at  the  age  of  puberty  and  free ; 
both  must  be  patricians  or  both  plebeians,  and  the  union 
must  not  be  incestuous.  Mutual  consent  was  indispensable, 
and  when  either  of  the  parties  was  under  the  power  of  a 
father,  his  consent  was  also  necessary. 

Complete  legal  marriage  might  be  perfected  by  usage 
or  prescription  (usu),when  the  possession  by  the  husband  of 
the  wife  had  continued  uninterrupted  for  one  year.  A  more 
solemn  form  was  known  as  confarration,  which  was  accom- 
panied with  peculiar  religious  rites.  A  third  form  was  de- 
nominated coemjptio,  or  buying,  and  consisted  in  a  formal 
and  public  sale  and  purchase  of  the  wife.  In  addition  to 
this  legitimate  mamage,  which  was  accompanied  by  the 
power  called  manus,  the  law  recognized  another  kind  of 
wedlock  called  concubinage,  which  was  divested  of  these 
severe  restraints  upon  wife  and  children,  but  M'hich  confer- 
red none  of  the  special  privileges  belonging  to  the  citizens. 

§  511.  When  a  daughter  married,  she  passed  out  from 
under  the  power  of  the  head  of  her  own  family,  into  the  ma- 
nus of  the  chief  of  her  husband's  family.  The  extent  of  the 
marital  power  of  the 2)aterfa/mlia8  was  the  same  as  that  which 
he  possessed  over  his  children.  His  wife  was  to  him  legally 
as  a  daughter  ;  she  was  in  the  place  of  sister  to  her  own  chil- 
dren, and  inherited  from  her  husband  as  one  of  them.  The 
paterfamilias  was  her  lord,  her  master,  her  judge,  her  law- 
giver ;  her  liberty  and  life  were  in  his  hands ;  her  dignity 
as  materfamilias  was  an  empty  show. 

§  512.  3d.  3[ancipium. — This  species  of  power  was  ac- 
quired by  the  solenm  sale  of  a  freeman.  It  was  used  for 
the  purpose  of  emancipating  a  son  from  the  paternal  power 
of  \\\&  paterfamilias.     The  father  made  a  solemn  public  sale 


AGNATS — TUTORS.  305 

of  his  son  to  a  thii'd  person,  who  immediately  emancipated 
his  purchased  chattel,  and  the  latter  fell  again  under  the 
domestic  yoke.  When  this  process  had  been  repeated  three 
times,  the  law  declared  the  last  act  of  emancipation  valid, 
and  the  child  was  free  from  the  family  tie. 

§  513.  4th,  Agrlation,  or  Family  Relationship.  (Agna- 
tio,  agnati.)  The  persons  thus  under  the  power  of  a  living 
paterfamilias^  including  wife  and  descendants,  or  who  would 
have  been  under  his  power  were  he  still  living,  were  bound 
together  in  a  close  family  relationship  termed  agnation. 
Among  these  relations  or  agnats,  were  confined  all  the  priv- 
ileges of  the  Roman  family  as  a  domestic  institution,  and 
as  an  important  civil  element  in  the  state.  Among  the 
rights  pertaining  to  the  agnats  was  that  of  inheritance  from 
the  family  head,  or  from  each  other,  and  that  of  guardian- 
ship over  minor  children,  and  over  the  women,  when  the 
jpaterfamilias  was  dead. 

§  514.  5th.  This  leads  me  to  desciibe  another  species  of 
persons  alieni  juris^  those  subjected  to  the  control  of  tutors 
or  guardians,  and  of  curators.  When  t\\e  paterfamilias  died 
leaving  children  of  either  sex  under  the  age  of  puberty,  or 
unmarried  daughters  of  any  age,  or  a  wife,  these  were  all 
placed  under  the  control  of  a  tutor  or  guardian.  Thus  the 
early  Roman  law  did  not  recognize  the  ability  of  a  woman 
in  any  condition  of  life  to  manage  her  own  affairs.  The 
daughter  was  under  the  paternal  power  during  the  lifetime 
of  t\iQ  joaterfamiUas  until  her  marriage.  Upon  that  event  she 
passed  under  the  manus  of  her  husband,  or  of  her  husband's 
father.  At  the  death  of  the  one  whose  dependent  she  was, 
whether  father  or  husband,  she  was  not  freed,  but  was 
transferred  to  the  care  of  a  tutor,  who  was  chosen  from  the 
agnats^  or  family  relations  of  the  family  to  which  she  then 
belonged.  Thus  the  unmarried  sister  might  fall  under  the 
control  of  her  own  brother,  and  the  widowed  mother  under 
that  of  her  son. 

The  power  of  the  tutor  extended  to  the  persons  and 
20 


306  THE   ROMAN    LAW. 

property  of  the  wards,  but  was  not  so  unlimited  as  that 
lodged  in  the  hands  of  the  ]}aterfamilias.  The  tator  was 
appointed  by  the  last  will,  of  \hQ paterfamilias,  or,  in  default 
of  such  an  appointment,  the  right  devolved  upon  one  of  the 
agiiats.  Curators  were  a  species  of  guardians  placed  over 
the  insane,  idiots,  or  spendthrifts. 

§  515.  I  cannot  better  close  this  detail  of  the  primitive 
Roman  family  relations,  than  by  quoting  M.  Troplong's 
graphic  and  picturesque  description.  "  What  was  the 
Roman  family  ?  Was  it  founded  upon  blood  and  nature  ? 
No.  It  was  the  civil  bond  of  power  (potestas,  manus) 
which  united  its  members  and  maintained  their  segregation. 
One  was  not  a  member  of  a  family  simply  by  being  a  son, 
or  a  wife,  or  a  relation,  but  by  being  a  son  under  power,  a 
wife  under  power,  a  relation  by  submitting  to  an  actual 
common  power,  or  which  would  have  been  such  had  the 
chief  remained  alive.  In  a  word,  the  Roman  family,  the 
singular  creation  of  a  people  born  for  power,  was  simply  an 
assemblage  of  individuals  recognizing  the  power  of  a  single 
chief.  Whoever  recognizes  this  power  is  in  the  family ; 
whoever  was  freed  therefrom,  although  child  or  descendant, 
was  not  in  the  family.  Simple  marriage  was  an  insufficient 
bond  to  bring  the  wife  into  the  family  of  her  husband  ;  she 
yet  remained  in  her  own  family,  under  the  name  of  matron  ; 
she  was  a  stranger  to  that  of  her  children.  But  if  the  nup- 
tials were  followed  by  a  year  of  possession  of  the  wife  by 
the  husband  (usns),  or  if  they  had  been  consecrated  by  the 
rohgious  and  patrician  ceremonies  of  confarration,  or  had 
been  accompanied  by  the  civil  forms  of  sale  (coemptio), 
then  the  wife  passed  under  the  power  of  her  husband.  She 
became  matcrfamiUas,  and  this  power  completely  breaks 
her  spirit  by  its  character  of  austere  severity  ;  for  the  hus- 
band was  judge  of  the  wife  ;  he  was  able  alone,  in  the  older 
times,  later  by  aid  of  a  family  council,  to  condemn  her  to 
death  ;  he  is  master  of  her  person  and  of  her  goods,  almost 
as  if  he  had  obtained  lier  by  conquest.  And  since  the  power 


IDEA    OF   THE   ROMAN    FAMILY.  307 

made  the  family,  the  wife  quitted  her  own,  to  enter  that  of 
her  husband.  There  she  was  received  as  a  daughter ;  she 
had  only  the  rank  of  sister  in  blood  to  the  children  whom 
she  had  given  to  her  husband.  Outwardly,  without  doubt, 
she  will  participate  in  the  honors  of  her  husband ;  she  will 
be  surrounded  by  an  official  respect.  But  in  the  bosom  of 
her  family  she  bows  before  the  majesty  of  her  lord.  She 
has  not  the  right  of  property  while  her  husband  lives,  and 
she  will  inherit  from  him  only  as  the  adopted  daughter  of 
this  civil  father.  The  death  of  her  husband  will  not  cause 
her  to  pass  again  in1;o  her  own  family  ;  a  sacred  bond  re- 
tains her  in  that  which  she  has  adopted  ;  she  will  find  there 
a  legal  tutor  among  her  own  agnats,  or  a  testamentary  tutor 
of  her  husband's  choice. 

§  516.  "  By  the  side  of  this  power  was  another,  enjoyed 
by  no  one  except  a  Eoman  citizen, — the  paternal  power. 
What  shall  I  say  of  this  terrible  power,  which  was  one  of 
the  bases  of  the  Roman  constitution  ?  It  absorbed  in  the 
jpaterfamilias  the  persons  of  the  son,  and  of  the  wife  in  the 
power  of  the  son,  and  of  his  children,  and  all  the  property 
which  he  had  acquired.  The  father  is  in  this  sanctuary 
judge  supreme  ;  he  exercises  over  his  children  a  legislation 
invested  with  the  right  of  life  and  death.  But  it  was  not 
nature  which  gave  this  power  ;  it  did  not  proceed  from  nat- 
ural filiation.  It  was  a  creature  of  the  civil  law,  and  ex- 
tended as  well  over  children  adopted  from  strangers,  as 
those  born  in  the  wedlock. 

§  517.  "  Wherever  the  power  of  the  father  extended, 
the  family  also  extended  its  branches.  All  those  who  were 
bound  by  these  rigorous  ties,  or  who  would  have  been, 
bound  if  the  common  author  had  not  been  dead,  had  among 
themselves  a  civil  relationship  called  agnatio,  which  alone 
gave  the  rights  of  the  family  and  of  succession  to  property. 
The  aggregation  of  agnats  alone  formed  the  Roman  family, 
and  had  the  right  to  be  counted  in  forming  the  political 
family,  the  gens.     It  is  in  the  bosom  of  this  civil  family 


308  THE   KOMAN    LAW. 

that  the  father  will  find  heirs  to  perpetuate  his  name  ;  it  is 
there  that  the  rights  of  inheritatice  aud  of  tutorship  are  de- 
posited." 

II.    OF  THINGS,  WHICH  MAY  BE  THE  OBJECTS  OF  RIGHTS. 

§  518.  The  arbitrary  character  of  the  ancient  Eoman  law 
was  not  confined  to  the  domestic  relations  and  the  rights  of 
persons.  Contrary  to  equity  and  uatui'al  justice  as  were  its 
rules  in  reference  to  these  subjects,  its  provisions  regarding 
the  rights  of  property  were  equally  rude  and  national.  They 
reflected  the  stern  Roman  spirit  everywhere,  struggling  to 
aggrandize  the  state,  to  regard  the  individual  merely  as  an 
unit  in  the  commonwealth. 

§  519.  1.  Classes  of  Things. — The  divisions  which  the 
ancient  Roman  law  made,  were  not  those  adopted  by  the 
English  and  American  jurisprudence,  lands  and  chattels. 
The  same  rights,  the  same  kinds  of  property,  the  same 
methods  of  acquisition  and  transfer,  applied  to  each  of  these 
two  species  of  possessions,  between  which  the  feudal  spirit 
has  left  so  broad  a  line  of  demarkation  in  modern  legislation. 
Yet  there  were  classes  of  things,  having  their  origin  in  the 
national  manners  and  history. 

§  520.  1st.  There  were  things  of  a  superior  character 
over  all  others,  such  as  were  the  objects  of  desii'e  among 
the  primitive  Romans,  and  appeared  most  precious  to  the 
military  and  agricultural  simplicity  of  the  people.  This  di- 
vision included  the  farms,  aud  the  houses  of  the  city  and 
country  about  the  city,  the  slaves,  and  the  beasts  of  burden 
and  industr}'^,  the  ox,  the  horse,  and  the  ass.  Such  were  the 
articles  whose  possession  excited  the  ardor  of  the  first  sim- 
ple Romans.  Tlie  state,  which  had  obtained  them  in  war 
and  divided  them  among  the  citizens,  was  considered  as  the 
sacred  source  of  this  patrimony.  Hence  the  property  in 
these  things  was  regulated  by  the  intervention  of  the  state^ 
whenever  they  were  transferred  from  one  to  another.  These 
things  were  known  as  Bes  Mancipi. 


THE    EO^^IAN    PKOPERTT.  309 

§  521.  2d.  All  other  tilings,  however  rare  and  coBtly, 
were  considered  as  inferior,  and  were  included  in  the  class 
res  nee  mancipi.  Tlie  early  civil  law  passed  them  by  as  of 
little  moment,  and  so  far  as  rights  of  property  in  them  were 
concerned,  left  them  to  the  operation  of  the  laws  of  nature. 

§  522.  2.  Kinds  of  Property  which  might  Tje  had  in 
Things. — Corresponding  to  the  two  classes  of  things,  were 
two  kinds  of  property  or  species  of  ownership,  which  might 
be  had  in  them. 

1st.  The  first  of  these  was  the  true  Roman  or  Quiritary 
property  (property  ex  jure  qniritum),  which  was  the  espe- 
cial creation  of  the  civil  law.  This  species  of  ownership 
could  only  be  enjoyed  by  a  Roman  citizen.  A  stranger 
might  possess  the  objects  of  this  kind  of  property  during 
any  extent  of  time,  the  ownership  still  would  not  appertain 
to  him.  The  class  of  things  which  might  thus  be  subjected 
to  the  peculiar  dominion  of  the  Roman  citizen,  were  the  res 
mancipi — the  farms  and  houses,  the  slaves,  the  beasts  of  bur- 
den and  industry. 

§  523.  The  peculiar  and  arbitrary  characteristic  of  this 
purely  Roman  property  was  that  it  could  not  be  lost  or 
parted  with  except  by  the  observance  of  certain  well-defined 
forms  of  sale.  If  these  forms  had  not  been  followed,  any 
transfer  of  an  article  belonging  to  the  favored  class  was  ab- 
solutely void,  and  the  original  owner  might  retake  it  from 
the  hands  of  any  possessor,  even  from  one  claiming  it  in 
good  faith,  and  who  had  paid  for  it  a  full  price. 

§  524.  The  methods  of  acquiring  and  transferring  the 
Roman  property,  or  dominium  ex  jure  quirittim  from  one 
citizen  to  another,  were  three. 

1st.  Mancipation.  This  method  transferred  the  property 
at  once.  It  recognized  the  original  proprietorship  of  the 
state,  and  called  it  in  to  preside  over  each  sale  from  one 
owner  to  another.  In  the  earlier  stages  of  Roman  civiliza- 
tion, this  was  the  common  mode  of  purchase  and  sale.  The 
two  parties,  the  seller  and  the  buyer,  must  both  be  citizens, 


310  THE    ROMAN    LAW. 

and  in  each  other's  presence  ;  there  should  also  be  a  weigher 
to  measure  out  the  price,  who  must  be  a  public  person,  and 
five  other  citizens  as  witnesses.  The  thing  to  be  sold,  if 
movable,  must  be  present,  within  the  touch  of  both  parties. 
The  price  was  then  weighed  out,  and  certain  indispensable 
formulas  said  over,  and  the  Roman  property  was  trans- 
ferred. 

2d.  Another  method  by  which  a  citizen  might  acquire 
this  dominion -or  right  of  ownership,  was  prescription  (usus, 
usucaptio).  This  consisted  of  a  constant  possession  of  land 
for  two  years,  or  a  chattel  for  one  year,  and  at  the  expira- 
tion of  that  time  the  mere  occupancy  was  changed  into  the 
Roman  property. 

3d.  The  third  method  consisted  in  a  fictitious  action  be- 
fore a  magistrate.  The  new  proprietor  demanded  the  thing, 
the  old  owner  did  not  object,  and  the  officer  decreed  that 
the  claim  should  be  allowed. 

§  525.  Such  was  the  exalted  Roman  right  of  property, 
carefully  guarded  by  the  earlier  civil  law,  sternly  refused  to 
a  stranger,  the  birthright  of  the  citizen,  entirely  opposed  to 
the  milder  and  equitable  jus  gentium.  The  com-se  of  time 
and  the  progress  of  civilization,  acting  through  the  praetorian 
legislation,  gradually  relaxed  the  sternness  of  this  species 
of  ownership,  and  finally  caused  it  to  disappear  from  the 
national  jurisprudence. 

§  526.  2d.  The  second  kind  of  property  was  that  in 
things  of  the  class  res  nee  mancipi,  and  might  be  enjoyed 
by  citizens  or  strangers.  The  characteristics  of  this  owner- 
ship, and  the  methods  of  acquiring  and  transfer,  were  sim- 
ple and  equitable.  The  things  subjected  to  it  were  consid- 
ered unwortliy  to  participate  in  the  sacramental  solemnities 
of  numci})ation  ;  tiiey  had  no  civil  method  of  alienation  ; 
mere  delivery  sufficed  to  convey  a  right  of  ownership  ;  they 
were  governed  1)y  the  natural  law. 

§  527.  ?..  Suceesnum  to  the  Edate  of  a  deceased  Person.— 
Tlie  ancient  Roman  law  2)rovided  two  methods  c-f  succession 


8TJCCESSI0N   TO   THE   ESTATES   OF   THE   DEAD.  311 

to  the  estate  of  a  deceased  person ;  by  last  will,  and  by  the 
disposition  made  of  the  property  when  there  was  no  will. 

1st.  By  Will.  For  a  person  to  be  able  to  make  a  will, 
he  must  be  a  master  of  his  own  property,  not  under  pater- 
nal power,  or  under  a  tutor  or  curator.  The  ancient  wills 
were  of  three  kinds.  One,  used  in  time  of  peace,  consisted 
of  a  declaration  made  by  the  testator  before  a  special  as- 
sembly of  the  people.  Another  was  used  by  soldiers  in 
time  of  war.  The  third  or  most  common  form  consisted  of 
a  fictitious  sale,  made  by  the  testator  to  the' persons  intend- 
ed as  heirs,  attested  by  witnesses,  and  reduced  to  writing. 
The  simple  form  of  will  resembling  that  now  in  use  was  in- 
troduced at  a  later  period  by  the  praetors. 

§  528.  The  essential  feature  of  the  will  was  that  it  must 
contain  some  person  or  persons  as  heirs.  The  heir  thus 
designated  took  all  of  the  property,  and  was  subjected  to  all 
of  the  debts  and  obligations  of  the  testator.  Thus  the  de- 
ceased was  perpetuated  in  his  heir.  Subsequent  modifica- 
tions of  the  law  relieved  the  heir  from  this  absolute  liability 
to  pay  the  debts  of  the  decedent,  and  gave  him  a  time  to 
examine  and  decide  whether  he  would  accept  the  inherit- 
ance, and  at  a  still  later  period  he  was  compelled  to  pay  the 
debts  only  to  the  amount  of  the  property  which  he  received. 

§  529.  2d.  Succession  in  Case  of  Intestacy.  When  no 
will  was  made,  tlie  law  regulated  the  inheritance.  Those  to 
whom  the  property  primarily  descended  were  the  persons 
who,  at  the  time  of  the  death,  were  in  the  actual  power  or 
7nanus  of  the  deceased,  including  the  wife,  sons,  and  unmar- 
ried daughters.  The  property  was  equally  divided  among 
them,  but  the  widow  and  unmarried  daughters,  and  all 
children  under  the  age  of  puberty,  were  put  in  the  care  of  a 
tutor.  These  heirs  inherited,  not  so  much  because  they 
were  of  the  same  blood  as  the  decedent,  but  because  they 
had  been  under  his  common  powder.  In  case  there  were 
none  of  these  heirs,  the  estate  was  d'vided  among  the  agnats 
or  family  relations  of  the  deceased,  ':hose  who  with  him  had 


312  THE   KOMAN   LAW. 

been  under  the  power  of  a  common  'paterfamilias.  These 
failing,  the  members  of  the  gens  or  house  succeeded  to  the 
inheritance.  Thus  the  Roman  law,  at  its  foundation,  disre- 
garded the  tie  of  blood,  which  the  English  legislation  as- 
sumes as  the  foundation  of  the  rules  of  succession  and  in- 
heritance, and  substituted  in  its  place  the  purely  civil  bond 
of  the  Roman  family,  united  under  the  arbitrary  and  im- 
placable nexus  of  the  power  of  the  paterfamilias. 

III.    OF    OBLIGATIONS. 

§  530.  The  term  obligation  was  not  used  until  a  later 
period  of  the  Roman  law,  but  in  the  most  ancient  times 
there  existed  those  rights  to  which  this  name  was  afterwards 
applied.  In  this  primitive  state  of  the  jurisprudence,  obliga- 
tions were  intimately  connected  with  the  technical  forms 
of  action  which  have  been  described  in  a  former  chapter ; 
indeed  the  law  laid  no  duty  upon  an  individual,  unless  it 
was  such  as  could  be  enforced  by  some  known  judicial  pro- 
ceeding. 

These  rights  inhering  in  one  person,  and  corresponding 
duties  in  another,  were  entirely  the  creatures  of  the  civil 
law  ;  natural  obligations  were  not  recognized  by  the  Ro- 
man citizen  or  the  old  Roman  legislation,  but  were  after- 
wards introduced  and  enforced  by  the  praetors,  who  finally 
built  up  so  splendid  a  structure  of  equitable  rules  upon  this 
rigid  foundation  of  tlie  early  national  law. 

§  531.  A  legal  obligation  then,  during  the  epoch  we 
are  considering,  was  that  by  which  an  individual  (reus, 
creditor)  had  the  rig] it  to  force  another  by  a  judicial  action 
to  fulfil  liis  engagements,  even  at  the  sacrifice  of  his  liberty 
and  property.  Of  these  there  were  two  general  classes : 
those  ai-ising  from  a  contract  (ex  contractu),  and  those  arising 
from  a  fault  (ex  delicto). 

§  532.  1.  Of  obligations  arising  from  a  contract.  Con- 
tracts were  of  two  kinds :  those  wliich  were  based  upon  a 
prior  delivery  of  something  by  the  demander  to  the  defend- 


CLASSES    OF   CONTRACTS.  313 

ant,  from  winch  a  duty  arose  to  returu  either  the  very  thing 
or  its  value,  or  to  do  some  service ;  and  those  which  were 
perfected  by  a  verbal  promise  in  which  all  of  the  formali- 
ties prescribed  by  the  law  had  been  strictly  observed. 

§  533.  1st.  Contracts  based  upon  the  prior  delivery  of 
something  could  be  made  in  two  modes,  viz.  :  when  the 
intention  was  that  the  thing  itself  or  one  of  the  same  kind 
should  be  returned  ;  or  when  it  was  to  be  exchanged  for  a 
different  thing  or  for  some  service.  Of  the  former  class 
there  were  four  contracts,  afterwards  known  as  Mutuum^ 
Commodatum^  D&positum^  and  Pignus.  Mutuum  corre- 
sponded to  our  loan  of  money  or  other  thing  when  the  bor- 
rower contracted  to  return  the  same  kind  of  thing  as  he 
received.  Commodatum  was  the  gratuitous  loan  of  some 
article,  and  the  obligation  was  to  restore  the  identical  thing. 
Depositum  was  the  gratuitous  deposit  or  entrusting  of  an 
article  by  its  owner  to  the  care  of  another  for  safe  keeping, 
with  the  understanding  that  it  should  be  redelivered  when 
called  for.  Pignus  or  pledge  was  the  delivery  of  a  thing 
by  a  debtor  to  his  creditor  as  security,  and  the  duty  rested 
upon  the  latter  to  return  the  chattel  when  the  debt  was  paid. 
The  law  gave  a  special  action  to  enforce  the  obligation 
arising  from  each  of  these  contracts. 

Contracts  of  the  second  class  were  those  in  which  a  per- 
son gives  or  does  something,  that  another  may  give  or  do 
something  else  in  return,  and  were  well  expressed  by  the 
pithy  Latin  formulas,  do  ut  des,  do  tit  facias^  facio  ut  des, 
dM^facio  ut  facias. 

§  534.  2d.  Contracts  perfected  by  words.  All  contracts 
containing  a  reciprocal  obligation  could  be  the  foundation 
of  an  action,  where  they  were  composed  of  a  verbal  ques- 
tion proposed  by  the  creditor,  and  a  reply  to  this  demand 
from  the  other  party.  The  form  of  solemn  question  and 
answer  was  common  among  the  Romans.  In  this  species 
of  obligation  it  was  not  conscience,  nor  a  notion  of  justice 
or  injustice  which  bound  the  party,  it  was  simply  the  word, 


314  THE   ROMAN    LAW. 

the  outward  literal  form  ia  wliicli  the  agreement  was  cast. 
The  Twelve  Tables  enacted,  Uhi  lingua  nvnciqiasset,  ita 
jus  esto.  Nothing  was  considered  as  promised,  but  that  in- 
cluded in  the  very  formula,  in  the  question  and  answer.  For 
example,  if  the  seller  should  conceal  a  hidden  defect  in  the 
thing  sold,  he  was  not  held  bv  any  obligation  to  make  res- 
titution to  the  buyer  for  the  fraud,  for  he  had  engaged 
nothing  in  regard  to  this  thing  by  his  words. 

This  entire  absence  of  good  faith  in  the  contracts  recog- 
nized by  the  primitive  law,  was  gradually  remedied  by  the 
pretorian  judicial  legislation,  and  the  equitable  obligations 
introduced  by  these  magistrates  were  extensive  enough  to 
embrace  all  of  the  transactions  of  a  great  and  busy  people, 

§  535.  2.  The  obligations  arising  from  faults  (ex  delicto), 
which  the  old  law  noticed,  were  few.  Certain  acts  which 
modern  legislation  regards  as  crimes  were  treated  by  the 
Eomans  as  the  foundation  of  a  legal  duty  to  make  repara- 
tion, which  could  be  enforced  by  a  civil  action.  Among 
these  the  principal  were  theft,  damage  to  the  property  of 
another  by  carelessness  or  other  unlawful  means,  and  inju- 
ries to  the  person  of  another  (furtum,  damnum,  injuria). 

§  536.  Such  were  the  principal  features  of  the  ancient 
l^rivate  law  of  the  Romans,  as  it  affected  persons,  things, 
and  obligations.  It  was  certainly  rude,  arbitrary,  unnatu- 
ral. But  at  the  same  time  it  was  a  comprehensive  system, 
embracing  all  the  topics  found  in  the  legislation  of  a  later 
age.  How  superior  is  it  in  all  respects,  as  a  system,  to  the 
early  codes  of  the  Franks  and  Saxons.  The  rules  thus 
stated  remained  the  basis  of  the  jurisprudence  through  its 
whole  progress,  and  gave  form  to  the  new  growth  built  upon 
this  foundation. 


THE  PHILOSOPHIC  AND   CHRISTIAN  PERIOD. 

§  537.  From  the  severe,  arbitrary,  aristocratic  c'vil  law 
of  ancient  Rome,  the  progress  was  steady  through  the  pe« 


SLAVES    AND   FREEMEN.  315 

riod  of  the  rejiublic  and  the  earlier  empire,  towards  a  com- 
plete agreement  with  natural  law  and  equity.  Of  the 
means,  methods,  instruments,  and  spirit  of  this  development ; 
of  the  praetors,  and  their  moulding  power  over  the  national 
jurisprudence ;  of  the  jurisconsults  during  the  empire,  and 
their  enlightened  and  philosophic  discussion  of  legal  prin- 
ciples, and  their  systematizing  labors  and  suggestions  to  the 
magistrates ;  and  of  the  imperial  constitutions,  I  have  suffi- 
ciently treated  in  Part  First.  I  now  propose  only  to  give 
a  sketch  of  the  result  of  these  centuries  of  improvement,  as 
it  is  summed  up  in  the  Institutes  of  Justinian.  The  com- 
mencement and  close  of  this  national  jurisprudence  thus 
brought  into  contrast,  will  enable  us  to  judge  of  the  im- 
mense power  of  courts  animated  by  the  spirit  of  an  advanc- 
ing civilization,  in  building  up  a  system  of  municipal  law. 

I  shall  treat  in  order,  I.  Of  Persons ;  11.  Of  Things  or 
Pro]3erty  ;  III.  Of  Obligations. 

First.     Of  Persons. 

§  538.  1.  The  general  division  still  existed  of  slaves  and 
freemen.  Slaves  were  those  born  of  slave  mothers,  those 
taken  captive  in  war,  or  those  who  suffered  themselves  to  be 
sold  into  servitude.  The  legal  condition  of  all  slaves  was 
the  same,  but  the  master's  ancient  irresponsible  power  had 
been  taken  away  since  the  prevalence  of  Christianity. 

Those  not  slaves,  were  either  freemen  (ingenui),  who 
were  born  of  free  parents,  or  even  of  a  free  mother,  and 
freedmen  (Hberlini),  who  had  been  manumitted  from  servi- 
tude. After  the  empire  became  Christian,  increased  facili- 
ties were  given  for  manumitting  slaves,  and  freedmen  came 
to  hold  all  the  rights  of  Roman  citizens.  "When  a  slave  was 
made  his  master's  heir  by  will,  he  became  free  thereby. 
Yet  it  was  unlawful  for  an  insolvent  master  to  set  his  slaves 
At  liberty  in  fraud  of  his  creditors.  Unless  the  actual  inten- 
tion to  defraud  existed,  however,  the  fi-eedmen  retained  their 


316  THE   ROMAK    LAW. 

liberty,  although  the  owner's  property  was  insufficient  to 
pay  his  debts. 

§  539.  2.  The  Domestic  Relations. — Husband  and 
TTrfe. — The  basis  of  marriage  was  the  consent  of  the  parties, 
which  must  be  accompanied  Uy  that  of  the  parents  if  either 
party  were  under  the  paternal  power.  A  parent  who  un- 
justly withheld  his  consent  could  be  compelled  by  a  magis- 
trate to  agree  to  the  marriage  and  to  give  the  requisite 
dowry.  The  consent  must  be  free  and  unconstrained. 
Marriage  contracts  were  common  in  the  later  periods  of  the 
empire.  It  was  the  duty  of  the  father  to  give  his  daughter 
a  marriage  portion  or  dowry,  according  to  the  amount  of  his 
property,  but  not  so  much  as  to  defraud  his  creditors.  On 
her  death  this  dowry  returned  to  the  father.  The  wife's 
dowry  might  also  be  taken  from  her  own  property,  and  if 
she  were  of  full  age,  and  not  under  the  paternal  power,  she 
might  herself  set  apart  a  portion  of  her  property  for  this 
purpose.  The  husband  also  added  a  share  of  his  property, 
to  be  used  with  the  dowry  for  the  benefit  of  himself  and 
wife.  During  the  marriage  he  had  the  full  control  of  the 
whole  of  this,  and  was  entitled  to  the  rents  and  profits  for 
tlie  support  of  the  family.  Whatever  the  wife  owned  in 
addition  to  her  dowry,  was  called  her  paraphrena,  and  was 
absolutely  her  own,  entirely  beyond  the  husband's  control. 

§  540.  Marriages  were  prohibited  between  all  persons 
related  in  the  direct  ascending  and  descending  lines,  be- 
tween i)arents  and  adopted  children,  between  brothers  and 
lusters,  Ijetween  a  man  and  the  daughter  or  granddaughter 
of  his  brother  or  sister  ;  but  cousins  might  marry. 

The  wife  was  under  the  power  of  the  husband,  but  this 
power  no  longer  included  the  right  to  punish  or  to  deprive 
of  life,  but  simply  constituted  him  the  legal  head  of  the 
family.  At  his  death  she  was  one  of  his  representatives,  and 
inherited  a  portion  of  his  estate  with  her  children. 

Before  the  empire  became  Christian  the  utmost  latitude 
of  divorce  existed,  so  that  either  party  might  terminate  the 


PAKENT    AND    CHILD — -TUTOR   AND    PUPIL.  317 

marriage  relation  at  will.  The  Cliristian  ideas  greatly  re- 
Btrained  this  licei.se,  and  divorce  was  prohibited  by  impe- 
erial  constitutions,  except  for  a  few  specified  causes. 

§  541.  Parent  and,  Child. — The  children  born  in  lawful 
wedlock  were  under  the  father's  power,  and  this  control  ex- 
tended over  the  children  of  s6ns.  In  short  the  form  of  the 
old  Roman  family  with  its  jpaterfamilias  was  left,  but  its 
distinctive  features  had  long  been  lost.  The  paternal  pow- 
er, once  so  terrible,  was  now  only  that  natural  dominion 
which  the  parent  should  have  over  his  child. 

The  law  also  gave  the  right  of  adopting  children,  who 
were  received  into  all  the  privileges  and  subjected  to  all  the 
duties  of  those  born  in  wedlock.  There  were  two  kinds  of 
adoption,  the  one  effected  by  means  of  an  imperial  mandate 
or  order,  the  other  by  the  authority  of  a  magistrate.  Re- 
straints were  placed  upon  this  practice,  intended  to  secure 
the  welfare  and  property  of  the  child.  One  might  ad9pt 
another  either  as  his  son  or  as  his  grandson.  Women  could 
not  adopt  children,  nor  were  their  own  offspring  even  under 
their  power ;  during  marriage  this  right  was  enjoyed  by 
the  husband  alone,  after  his  death  it  was  confided  to  a 
guardian.  The  power  of  the  father  was  terminated  by 
death,  and  his  children  became  independent.  An  act  of 
emancipation  also  destroyed  this  power ;  the  ancient  form 
of  emancipation  by  sales  of  the  child  had  been  abandoned, 
and  the  act  was  simplified  into  a  mere  declaration  before  a 
magistrate. 

§  512.  Tutors  and  Pwpils. — Male  children  under  the 
age  of  fourteen,  and  females  under  that  of  twelve,  were  con- 
sidered as  having  no  discretion.  At  the  death  of  the  father 
before  they  arrived  at  these  ages,  they  were  placed  under 
the  care  of  tutors  or  guardians.  A  father  might  appoint 
tutors  for  his  infant  children  by  his  last  will,  and  they  were 
then  called  testamentary  tutors.  When  no  testamentary 
tutor  was  named,  the  oflSce  devolved  upon  the  nearest  of 
the  agnats  of  the  infant,  or  his  relations  on  the  father's  side. 


318  THE   ROMAX    LAW. 

Such  tutors  were  called  legal.  In  default  of  either  of  these, 
the  prsetor  or  the  president  of  a  province  appointed  the 
guardian. 

Tlie  authority  of  the  tutor  extended  to  the  care  of  the 
pupil's  person,  and  the  management  of  his  property.  Most 
engagements  of  the  infant,  in  order  to  be  binding  upon  him, 
must  have  been  made  by  the  tutor  on  his  behalf.  The  rule 
was  that  the  pupil  might  better  his  condition,  but  could  do 
nothing  which  might  impair  it,  without  the  authority  of 
the  tutor. 

§  543.  The  tutorship  lasted  until  male  children  reached 
the  age  of  fourteen,  and  females  that  of  twelve,  but  was 
succeeded  by  a  curatorship,  which  lasted  until  the  children 
attained  the  age  of  twenty -five.  Curators  were  appointed 
by  magistrates.  The  insane,  the  idiotic,  and  the  prodigal, 
were  also  subjected  to  this  species  of  guardianship.  These 
fiduciary  officers,  except  testamentary  tutors,  were  com- 
pelled to  give  security  for  the  faithful  discharge  of  their 
duties.  It  was  a  part  of  the  praetor's  jurisdiction  to  exercise 
an  ovei-sight  and  control  over  tutors  and  curators,  to  compel 
them  to  account,  to  remove  them  if  faithless,  to  demand  se- 
curity from  them,  and  generally  to  enforce  a  strict  observ- 
ance of  their  duties,  and  to  protect  the  interests  of  pupils 
and  wards. 

Second.     Of  Things. 

§  544.  I.  Of  the  different  Kinds  of  Things. — Certain 
things  were  not  the  subjects  of  private  property.  Some  of 
these  were  common  to  all  mankind  by  the  law  of  nature, 
such  as  the  air,  running  water,  the  sea  and  its  shores,  rivere 
and  their  banks,  ports,  the  right  of  fishing  in  the  sea  and  in 
rivers,  and  of  landing  and  mooring  on  their  banks.  Other 
things  were  removed  from  the  domain  of  private  property 
because  they  were  dedicated  to  the  public  or  consecrated  to 
religious  uses,   such   as   theatres,   race   courses,    churches, 


DIFFERENT   KINKS    OF   THINGS.  319 

bmyiiig  places  and  tombs,  the  Myalls  and  gates  of  a  city. 
Other  things  might  be  owned  and  possessed  by  private  per- 
sons as  their  own. 

§  545.  Things  were  divided  into  corporeal  and  incor- 
poreal. Corporeal  things  were  tangible,  and  embraced 
houses,  lands,  goods,  and  chattels.  Incorporeal  things  in- 
cluded such  as  were  mere  rights  or  privileges,  as  usufructs, 
uses,  and  servitudes.  The  ancient  distinction  of  res  manci/pi 
and  res  nee  mancipi  had  disappeared. 

§  546.  Incorporeal  things  require  some  more  particular 
description. 

Servitudes. — These  were  either  rustic  or  urban.  Rustic 
servitudes  were  certain  rights  annexed  or  belonging  to  one 
estate,  and  extending  over  the  land  of  another.  They  were 
rights  which  one  proprietor  had,  to  use  the  adjacent  soil  of 
a  neighbor.  They  included  the  right  of  path,  of  road,  of 
highway,  and  of  aqueduct  or  passage  for  water.  Urban 
servitudes  belonged  to  buildings,  whether  in  the  town  or 
country,  and  included  the  right  of  support  for  beams  upon 
the  walls  of  a  neighbor ;  the  right  of  drip  or  discharge  of 
water  from  one's  eaves  upon  a  neighbor's  land  ;  the  right 
of  light,  which  the  neighbor  could  not  obscure  by  building 
on  his  own  soil.  These  servitudes  required  an  estate  to 
support  them,  that  is,  they  were  accessories  of  landed  prop- 
erty, and  did  not  simply  belong  to  a  person  distinct  from 
his  character  of  owner  of  the  particular  building  or  farm. 
Our  own  law  borrows  these  same  rights  from  the  Koman, 
and  denominates  them  easements. 

§  54Y.  Other  incorporeal  things  appertained  to  persons, 
and  not  to  estates. 

Usufruct. — This  was  the  right  to  use  and  enjoy,  without 
destroying  or  consuming,  things  which  were  the  property 
of  another.  This  species  of  incorporeal  property  was  often 
created  by  will,  when  the  naked  ownership  of  a  thing  was 
bequeathed  to  one  person,  and  the  usufruct  for  a  specific 
time   to  another.     Usufructs  might   be  granted  in  lands, 


320  THE  ROMAN   LAW. 

houses,  slaves,  cattle,  and  the  like,  but  not  in  those  things 
^vhich  are  consumed  by  the  use.  The  right  ended  with  the 
death  of  the  person  enjoying  it,  or  with  the  expiration  of 
the  time  for  which  it  was  created.  Use  (usus),  was  a  lesser 
right  than  usufruct,  for  it  gave  the  possessor  only  the  privi- 
lege of  using  another's  property  as  occasion  required,  and 
could  not  be  transferred  or  sold  as  could  an  usufruct.  Hab- 
itation was  the  right  which  a  person  held  to  occupy  the 
house  of  another. 

§  548.  II.  Methods  or  acquiring  Peopektt  in  Indivtd- 
UAL  Things. — 1.  Occupancy.  Certain  things  became  the 
subjects  of  private  property  by  mere  possession  or  occu- 
pancy, such  as  wild  beasts  and  fowls.  The  Roman  law  waa 
minute  in  its  enumeration  of  instances  where  mere  posses- 
Bion  or  occupancy,  or  something  analogous  thereto,  gave  a 
private  right  of  ownership.  This  minuteness  of  division 
well  illustrates  the  refinement  of  that  law.  The  o-round 
which  was  added  to  a  person's  land  by  gradual  accretion 
fi-om  a  river  became  his  property,  but  that  which  was  cut  off 
from  another's  soil  by  the  overwhelming  force  of  the  stream, 
and  joined  to  his,  still  continued  the  property  of  the  former 
owner.  When  a  person  made  a  specific  article,  with  mate- 
rials belonging  to  another,  without  the  latter's  consent,  if 
the  article  could  be  reduced  to  its  former  shape,  it  belonged 
to  the  owner  of  the  original  material ;  but  if  it  could  not  be 
so  reduced,  it  remained  the  property  of  the  artificer.  For 
example,  if  one  should  construct  a  cup  of  another's  gold,  the 
vessel  would  belong  to  the  owner  of  the  metal ;  but  if  one 
should  make  wine  of  another's  grapes,  the  wine  would  be- 
long to  the  trespasser,  though  -he  would,  of  course,  be  liable 
to  the  owner  of  the  grapes  for  their  value.  But  if  a  person 
should  make  an  article  partly  with  his  own,  and  partly  with 
another's  material,  it  became  entirely  his.  If  materials  be- 
longing to  two  persons  were  mingled  by  mutual  consent  or 
by  chance,  the  whole  mass  was  common  to  both  proprietors. 


PKESCEIPTION — DONATION — SALE.  321 

If,  however,  one  should  mix  another's  materials,  such  as 
corn,  with  his  own,  the  mixture  would  not  be  common. 
K  a  man  should  build  a  house  on  his  own  ground  witli  the 
matenals  of  another,  the  property  became  his  own,  yet  he 
would  be  liable  to  the  owner  for  double  their  value.  On 
the  contrary,  if  a  person  should  build  wdth  his  own  mate- 
rials on  the  land  of  another,  the  edifice  became  the  property 
of  him  to  whom  the  ground  belonged.  These  principles 
were  extended  to  many  other  cases. 

§  549.  2.  Prescription.  Property  in  things  might  be  ac- 
quired by  prescription  (usucaptio).  This  took  place  when 
the  holder  came  at  first  honestly  though  mistakenly  into 
possession.  In  such  case,  possession  of  movables  for  three 
years,  and  of  lands  for  twenty  years,  conferred  an  absolute 
right,  even  against  the  original  owner.  A  title  to  things 
stolen  could  not  be  acquired  by  prescription.  Our  own  law 
recognizes  this  method  of  acquiring  property  in  lands. 

§  550.  3.  Donations.  Another  method  of  acquiring 
property  was  by  donations  or  gifts.  Gifts  were  of  two 
kinds,  those  causa  mortis,  or  in  view  of  death,  and  those 
inter  vivos,  or  between  the  living,  and  not  having  reference 
to  death. 

A  gift  causa  mortis  took  place  when  a  person,  mider  ap- 
prehension of  death,  gave  a  thing  to  another,  with  the  con- 
dition that  if  the  donor  should  recover,  it  was  to  be  re- 
turned. Donations  inter  vivos  were  not  made  under  ex- 
pectation of  death ;  they  became  perfect  when  the  giver 
had  manifested  bis  intention,  but  the  later  law  required  an 
actual  delivery  of  the  article  to  render  the  gift  valid.  As 
the  name  implies,  these  transfers  were  made  without  any 
consideration  or  return  from  the  receiver,  and  therein  dif- 
fered from  sales.  Our  own  law  has  borrowed  these  kinds 
of  gifts  from  the  Eoman,  together  witb  most  of  the  rules 
regulating  them. 

§  551.  4.  Sales.  Another  method  of  acquiring  property 
was  by  sale  and  purchase.  In  general  all  things,  except 
21 


822  THE   KOMAN   LAW. 

those  sacred  or  public,  whether  lands  or  movables,  corporeal 
or  incorporeal,  niigbt  be  bought  and  sold.  The  peculiar 
Koman  property  (ex  jure  Quu*ituni),  never  prevailed  in  the 
provinces,  and  it  had  long  ago  given  place  to  the  natural 
propert}'-  as  recognized  by  the  jus  gentium^  So  the  ancient 
foi-m  of  mancipation  was  never  in  use  beyond  Italy,  and 
had  been  abandoned  there,  while  the  simpler  forms  of  mere 
agreement  and  delivery  of  the  thing  sold  had  become  uni- 
versal. The  contract  of  sale  was  complete  when  the  parties 
had  agreed  upon  the  thing  and  the  price.  But  the  property 
did  not  pass,  even  after  a  delivery  of  the  thing,  until  the 
buyer  had  paid  the  j)rice,  or  given  some  security,  unless  the 
sale  was  definitely  made  on  credit.  The  delivery  might  be 
made  by  the  seller,  or  his  agent,  and  might  be  symbolic ; 
for  example,  when  a  person  had  sold  merchandise  depos- 
ited in  a  store  house,  he  was  understood  to  have  transferred 
the  property,  upon  delivering  the  key  to  the  buyer.  There 
were  some  restrictions  upon  the  right  of  sale.  A  husband 
could  not  alien  the  lands  which  came  to  him  by  right  of  his 
wife,  without  her  consent,  nor  could  a  pupil  convey  his 
property,  without  the  authority  of  his  tutor.  Creditors 
might  sell  the  articles  pledged  to  them,  if  the  debt  for  which 
they  were  security  was  not  paid  at  the  time. 

§  552.  The  law  allowed  persons  to  acquire  property,  not 
only  by  themselves,  but  by  those  under  their  power,  as 
slaves  and  children  not  emancipated.  We  have  seen  how 
severe  the  primitive  Roman  law  was  in  this  respect ;  that 
all  things  acquired  by  a  slave  or  child  belonged  absolutely 
to  the  jpaterfamiliaa.  It  was  a  part  of  the  more  just  rules 
introduced  by  the  praetorian  legislation,  to  allow  to  children 
and  afterward  to  slaves,  the  free  use  and  ownership  of  a 
portion  of  property  called  their  jpeculium.  This  peculium 
consisted  of  property  acquired  by  the  child  or  slave  through 
liis  own  industry  or  by  gift,  and  with  the  consent  of  the 
father  or  master.  Justinian  still  further  extended  the  privi- 
lege of  the  son,  by  allowing  him  to  retain  as  his  own  aU 


LAST    WILLS    AND    TESTAMENTS.  323 

tnat  he  obtained  by  his  labors  or  otherwise,  without  help 
from  his  father's  patrimony. 

§  553.  III.  Method  of  acquiring  Property  in  the  entire 
Estate  or  Succession  of  Another. — Property  in  an  en- 
tire estate  might  be  acquired,  1st,  by  a  last  will  or  testa- 
ment ;  2d,  by  succeeding  to  the  estate  of  an  intestate ; 
3d,  by  adrogation ;  and  4th,  by  the  judicial  sale  of  the 
effects  of  an  insolvent. 

1.  Of  Last  Wills  of  Testaments.  Forms  of  Wills. — The 
primitive  law,  as  we  have  seen,  gave  three  forms  for  a  will ; 
one,  consisting  of  an  act  done  in  the  public  assemblies  of  the 
people  ;  another,  made  without  any  observances,  before  going 
into  battle  ;  and  the  third,  consisting  of  a  public  fictitious 
sale  of  the  inheritance  from  the  testator  to  the  heir.  Tlie 
two  former  species  of  testaments  had  long  been  disused  ; 
the  third  lasted  until  a  late  period  of  the  empire.  The  pree- 
tors,  however,  in  the  discharge  of  their  legislative  functions, 
invented  another  and  far  more  simple  description  of  will, 
which  became  the  one  in  common  use.  This  consisted  of  a 
written  instrument,  attested  by  the  seals  of  seven  witnesses. 
The  imperial  constitutions  added  to  these  praetorian  requi- 
sites, that  the  will  must  be  subscribed  by  the  testator  and 
the  witnesses,  at  one  and  the  same  time,  in  each  other's 
presence.  Certain  persons  could  not  be  witnesses.  In  gen- 
eral, those  who  could  not  make  wills  could  not  witness  one. 
ISTor  could  the  heir  named  in  a  will  attest  it ;  but  the  reason 
of  the  rule  was  a  technical  one,  based  upon  the  idea  that  the 
transaction  was  directly  between  the  testator  and  the  heir,  and 
that  the  latter  could  not  be  a  witness  for  himself.  But  leg- 
atees, or  those  who  received  specific  gifts  by  a  will,  might  at- 
test it.  The  will  might  be  written  on  wax,  paper,  parchment, 
or  any  other  substance.  In  certain  instances  the  testament 
might  be  verbal,  if  made  in  the  presence  of  seven  witnesses, 
and  was  then  called  a  nuncupative  will.  All  persons  were  ca- 
pable of  making  wills,  except  those  under  the  power  of  an- 


324  THE   KOilAN    LAW. 

other,  minors,  the  insane,  the  idiotic,  the  prodigal,  and  some- 
times the  deaf,  dumb,  and  Ijliiid. 

§  554.  The  Substance  of  a  Will. — Tlie  important  provi- 
sion of  a  will,  without  which  it  was  entu*ely  nugatory,  was 
the  naming  in  it  of  some  person  or  persons  as  the  heir  or 
heirs,  to  whom  the  entire  property  of  the  testator  should 
pass  at  his  death,  and  who  would  represent  the  deceased, 
forming  a  legal  perpetuation  of  his  person.  "When  this  heir 
was  a  single  individual,  he  inherited  the  whole  property  by 
himself,  except  so  much  as  was  specifically  left  in  legacies  ; 
if  several  were  named  as  heirs,  they  inherited  the  estate 
collectively  and  jointly. 

§  555.  The  Roman  law  had  from  the  beginning  required 
that,  to  insure  the  validity  of  the  will,  the  sons  of  the  testa- 
tor under  power  should  be  named  as  heii's,  or  expressly  dis- 
inherited by  name,  and  not  in  general  terms.  If  a  son  was 
passed  over  in  silence,  the  will  was  void.  The  rule,  how- 
ever, did  not  extend  to  daughters,  or  grandchildren  of  either 
sex.  Justinian  altered  the  law,  and  required  all  children, 
and  all  grandchildren  in  the  male  line,  to  be  named  as 
heirs,  or  disinherited  by  name. 

§  556.  Any  one  might  be  appointed  heir,  even  a  slave. 
A  person  could  not  die  partly  testate  and  partly  intestate  ; 
that  is,  he  could  not  dispose  of  a  portion  of  his  property  by 
will,  and  leave  the  rest  to  be  distributed  as  in  the  case  of 
death  without  a  will.  If,  then,  a  man  should  name  but  one 
heir,  and  gave  him  only  a  part  of  the  estate,  the  whole 
would  nevertheless  become  his.  Some  intricate  rules,  which 
it  is  not  necessary  to  state,  were  adopted  to  regulate  the  dis- 
tribution of  the  shares  among  several  heirs  appointed  by  the 
same  testament. 

§  557.  An  lieir  might  be  constituted  absolutely  or  con- 
ditionally, but  not  by  a  condition  which  would  necessarily 
happen  only  after  tlie  death.  In  case  of  such  a  provision, 
the  designation  of  the  lieir  was  absolute,  and  the  condition 
void.     Impossible  conditions  were  also  void. 


SUBSTITUTION    OF    HEIRS.  325 

§  558.  A  testator  miglit  name  successive  heirs,  so  that, 
if  the  first  should  die,  or  refuse  to  accept  the  inheritance, 
the  second  should  be  substituted  in  his  place,  and  the  series 
might  be  indefinitely  continued.  Of  course,  when  one  of 
these  heirs  did  accept  and  succeed  to  the  estate,  the  rights 
of  all  subsequent  ones  were  cut  off.  Such  a  provision  was 
called  the  vulgar  substitution  of  heirs.  A  person  might 
also  make  his  minor  child  his  heir,  and  provide  that,  if  he 
should  succeed  to  the  inheritance  and  should  die  while  yet 
an  infant,  another  should  be  substituted  as  the  heir.  This 
was  called  pupillary  substitution,  and  amounted,  in  fact,  to 
two  wills,  one  of  the  father,  and  the  other  of  the  infant  son. 
It  was  the  custom  for  the  testator  to  fold  up  and  seal  that 
part  of  the  will  which  contained  this  pupillary  substitution, 
so  that  it  could  not  be  opened  until  needed  at  the  death  of 
the  child  while  yet  a  minor.  This  was  done  to  prevent  any 
danger  to  the  welfare  of  the  infant  heir. 

§  559.  These  rules  of  the  Eoman  law  were  somewhat 
different  from  our  own.  By  the  English  and  American 
law,  as  has  been  explained  in  the  chapter  on  the  feudal  sys- 
tem, the  person  who  receives  the  whole  or  a  part  of  an  es- 
tate by  will,  is  not  the  heir.  IS'or  need  a  will  entirely  dis- 
pose of  the  property,  but  that  only  passes  to  the  persons 
designated  which  is  specifically  directed  by  the  testator,  so 
that  a  person  may  die  partly  testate,  and  partly  intestate. 
We  have  not  adopted  the  principle  of  substitution,  although 
the  common  law  of  England  and  the  American  States  allows 
a  method  of  disposing  lands  by  will  which  to  all  intents 
amounts  to  the  Koman  substitution.  A  testator  may  de- 
vise lands  to  one  person  for  a  specified  period,  or  for  life, 
and  direct  that  at  the  expiration  of  that  time,  or  at  the 
death  of  the  first  recipient,  the  property  shall  pass  to  an- 
other. "We  have  here  not  the  form,  nor  the  name,  but  the 
result  of  the  Eoman  substitution  of  heirs. 

§  560.  A  will  legally  made  remained  valid  until  it  was 
either  broken  or  rendered  ineftectual.      A  testament  was 


326  THE    EOMAN    LAW. 

broken  by  a  subsequent  adoption  or  birth  of  a  child,  or  by 
a  subsequent  perfect  will.  An  expressed  determination  to 
break  a  will,  was  not,  however,  effectual,  unless  it  was  fully 
carried  out  by  the  formal  execution  of  a  new  testament. 
Wills  were  sometimes  said  to  be  inofficious  or  ineffectual. 
This  took  place  from  extrinsic  circumstances,  although  the 
instrument  was  perfect  in  form.  "When  children  had  been 
unjustly  disinherited  or  omitted  from  the  will,  they  might 
complain  that  the  testament  was  inofficious,  under  the  fic- 
tion that  the  parent  was  of  unsound  mind,  and  procure  it 
to  be  set  aside.  It  was  not  understood  that  the  testator  was 
really  insane,  for  in  such  case  the  will  woukl  have  been  ab- 
solutely void,  but  the  whole  princij)le  was  introduced  by 
the  praetors,  in  order  to  promote  substantial  justice. 

§  561.  Heirs  appointed  by  will  were  of  three  classes, 
and  each  class  had  its  peculiar  rights  and  duties.  These 
divisions  were,  necessary  heirs,  proper  and  necessary  heirs, 
and  strangers.  A  slave  named  as  heir  by  a  will  was  called 
necessary ;  he  became  free,  and  was  compelled  to  take  the 
inheritance  with  all  its  burdens,  to  pay  all  the  testator's 
debts,  and  fulfil  all  his  obligations.  Proper  and  necessary 
heirs  were  sons,  daughters,  and  the  children  of  a  son.  By 
the  primitive  law  they  also  were  required  to  accept  the  in- 
heritance when  appointed,  and  to  assume  all  obligations, 
and  pay  all  debts  of  the  deceased.  The  praetors,  however, 
by  their  equitable  legislation,  had  relieved  them  of  the  ne- 
cessity of  accepting  the  inheritance  under  a  will,  and  had 
given  them  a  time  to  examine  into  the  condition  of  the  es- 
tate, and  to  elect  whether  to  receive  or  refuse  it.  When, 
however,  they  once  assumed  the  character  of  heirs,  the  full 
responsibility  for  the  debts  and  obligations  of  the  testator 
rested  upon  them.  Strangers  were  all  others  not  under  the 
power  of  the  deceased.  They  also  possessed  the  privilege  of 
election,  but  if,  by  any  act,  they  indicated  their  intention  to 
accept,  they  were  bound  by  the  decision.  The  same  burden 
rested  upon  them  as  upon  the  second  class.    Justinian  modi- 


LEGACIES.  827 

fied  these  rules,  and  gave  to  all  heirs  but  those  called  neces- 
sary the  benefit  of  an  inventory ;  or,  in  other  words,  he  re- 
leased them  from  all  responsibility  to  pay  the  debts  of  the 
deceased,  beyond  the  amount  of  property  which  they  had 
received  by  the  will.  A  comparison  between  the  Roman 
heirs  and  heirs  according  to  the  English  law,  and  between 
the  liability  resting  upon  the  Roman  heir  after  the  legis- 
lation of  Justinian,  and  that  devolving  upon  an  adminis- 
trator by  our  own  law,  is  given  in  the  preceding  chapter 
on  the  feudal  system, 
vJ  §  562.  Legacies. — A  legacy  was  a  gift  by  will  of  a  partic- 

ular thing  to  some  person  or  persons,  which  the  heir  was 
bound  to  carry  into  effect.  The  Roman  law  made  a  broad 
distinction  between  the  heir  and  the  legatee,  or  individual 
who  received  a  legacy.  The  one,  either  singly,  or  in  con- 
nection with  his  coheirs,  received  the  whole  estate,  and  suc- 
ceeded to  and  represented  the  deceased.  This  general  gift 
of  the  property  of  the  testator,  with  its  attendant  burden  of 
discharging  all  the  debts  and  obligations,  might  also  be 
charged  in  the  will  with  particular  burdens,  viz  :  the  deliv- 
ery of  specified  articles  to  the  legatees.  The  rules  in  respect 
to  legacies  were  very  favorable  to  the  legatee.  The  testator 
might  bequeath  articles  belonging  to  another  person,  and 
the  heir  was  obliged  to  purchase  and  deliver  them  to  the 
legatee,  or  pay  him  their  value.  If  the  thing  bequeathed 
had  been  pledged  by  the  testator  for  debt,  the  heir  must 
redeem  it,  and  complete  the  gift ;  so  also  if  the  thing  be- 
queathed had  been  the  property  of  another,  and  the  legatee 
had  purchased  it,  he  still  could  recover  its  value  from  the 
heir.  The  same  rule  applied,  if,  after  the  making  of  the 
will,  the  thing  bequeathed  had  been  sold  by  the  testator. 
Any  kind  of  thing  could  be  given  as  a  legacy,  and  a  debt 
could  be  discharged  in  this  manner.  If  the  gift  were  to  two 
legatees,  it  must  be  divided  between  them  if  both  lived, 
but,  if  one  died,  the  other  received  the  whole.  Instead  of 
directing  the  heir  to  deliver  a  specified  article,  the  testator 


328  THE    KOMAN    LAW. 

might  order  him  to  do  a  particular  act  on  behalf  of  the  leg- 
atee, as,  for  example,  to  build  a  house.  A  legacy  could 
not  be  giveu  to  an  uncertain  person,  but  a  mistake  in  the 
legatee's  name,  or  a  false  description  of  the  thing  be- 
queathed, did  not  vitiate  the  legacy,  provided  the  identity 
of  the  individual  and  of  the  article  was  sufficiently  certain. 
So  the  assignment  of  an  incorrect  reason  for  the  gift  did  not 
invalidate  it.  The  legacy  might  be  revoked,  or  transferred 
from  one  person  to  another,  by  the  same  will,  or  by  a  codi- 
cil. The  later  emperors,  in  their  constitutions,  placed  a 
limit  on  the  power  of  testators  to  give  legacies,  and  ordered 
that  not  more  than  three  fourths  of  an  estate  should  be  dis- 
posed of  in  this  manner.  The  reason  of  this  rule  was,  that 
a  sufficient  amount  might  be  preserved  for  the  heir,  to  in- 
duce him  to  accept  the  inheritance,  and  carry  out  the  provi- 
sions of  the  will. 

§  563.  Fidei  Commissa  ',  or  Trusts. — The  disposition 
of  the  property  of  a  testator  called  ^<^«^  comonissa,  or  trusts, 
was  contrived  in  the  later  part  of  the  republic,  in  order  to 
evade  severe  laws  passed  by  the  people  or  the  senate,  which 
forbade  inheritances  to  be  left  to  certain  classes  of  individ- 
uals. When  a  testator  wished  to  make  a  gift  of  his  estate 
in  this  manner,  he  first  appointed  an  heir  by  his  will  in  the 
regular  way,  -and  added  the  request  that  the  heir,  upon 
coming  into  poescssion,  would  transfer  the  inheritance,  or  a 
certain  designated  portion  of  it,  to  some  other  person  named. 
Such  bequests  were  called  fiduciary,  because  they  did  not 
confer  any  legal  right  upon  the  individual  whom  they  were 
designed  to  benefit,  but  depended  alone  upon  the  good  faith 
and  honor  of  the  heir  for  their  accomplishment.  They 
evaded  the  strict  law,  but  were  not  themselves  illegal,  for 
by  the  will  the  heir  became  absolute  owner  of  the  property, 
and  might  do  with  it  as  he  pleased,  and  it  was  therefore  en- 
tirely within  his  power  to  make  a  gift  of  it  to  the  person 
pointed  out  by  the  deceased.  Under  the  Emperor  Augustus 
tho  first  step  was  taken  toward  enforcing  the  observance  of 


FIDEI    COMMISSA — CODICILS.  329 

these  testamentary  dispositions  of  property,  and  they  became 
so  common  that  a  special  praetor  was  appointed  to  take  cog- 
nizance of  and  decide  cases  involving  them.  The  words  of 
mere  request  in  the  will,  which  at  first  the  heir  might  obey 
or  disregard  at  his  option,  came  to  have  the  effect  of  posi- 
tive commands,  which  he  could  not  evade.  When  this  had 
been  established,  the  person  to  whom  the  estate  was  actu- 
ally transferred,  or,  in  our  language,  the  beneficiary,  became 
to  all  intents  the  heir,  and  all  actions  in  reference  to  the  in- 
heritance, which  could  be  brought  by  or  against  the  original 
technical  heir,  were  transferred  to  him  ;  as  he  was  the  vir- 
tual owner,  the  law  clothed  him  with  the  owner's  responsi- 
bilities. Under  the  Emperor  Yespasian  a  decree  of  the  sen- 
ate was  made,  ordering  that  when  the  heir  named  in  a  will 
had  been  directed  to  transfer  the  whole  inheritance  to  an- 
other person,  he  might  still  retain  one  fourth  part  for  him- 
self. 

The  principle  oifdei  Govimissa  has  been  borrowed  from 
the  Roman  law,  and  incorporated  into  our  own,  but  has  been 
greatly  extended  and  modified  by  its  union  with  the  feudal 
ideas  of  landed  property.  The  uses  and  trusts  of  our  com- 
mon law  are  a  direct  result  from  this  Roman  original. 

§  56 i.  Codicils. — In  addition  to  the  will,  or  even  without 
the  existence  of  one,  a  testator  could  dispose  cff  legacies,  and 
fidei-commissary  gifts,  by  codicils.  These  were  writings 
expressing  the  wish  of  the  deceased,  but  reqviiring  none  of 
the  peculiar  solemnities  of  the  will  to  insure  their  validity. 
A  whole  inheritance  could  not  be  given  by  a  codicil.  Our 
own  law  recognizes  no  such  thing  as  the  Roman  codicil. 
"With  us  codicils  are  additions  made  to  a  will  already  exe- 
cuted, by  which  some  change  is  made  in  the  provisions  of 
that  instrument ;  and  they  are  executed  in  the  same  man- 
ner as  the  will  itself. 

§  565.  2.  Of  Succession  to  the  Estate  of  an  Intestate. — A 
man  died  intestate  who  had  made  no  will,  or  who  had  made 
one  not  in  due  form  of  law,  or  wb  d  had  made  one  which 


330  THE   ROMAN    LAW. 

had  been  cancelled  or  broken,  or  imdei  which  no  heir  would 
accept.  In  the  ease  of  intestacy,  the  law  designated  the 
persons  who  shoidd  succeed  to  the  property. 

§  566.  The  first  class  of  persons  to  whom  the  estate  of 
tlie  intestate  fell,  were  his  descendants,  who  at  his  death 
were  under  his  power.  These  included  children  living  and 
posthumous,  legitimate  and  adopted,  and  the  descendants 
of  sons,  but  not  of  daughters.  In  dividing  the  inheritance 
among  these  heirs,  the  law  constantly  kept  in  view  the 
original  number  of  the  decedent's  children.  If  the  children 
were  all  living,  they  shared  the  property  equally  ;  but  if  the 
original  number  had  been  for  instance  four,  and  one  son  had 
died,  leaving  children,  the  inheritance  would  still  be  divided 
into  four  shares,  one  for  each  of  the  survivors,  and  one  for 
the  descendants  of  the  deceased  brother.  If  the  original 
family  consisted  of  sons,  and  all  had  died  leaving  children, 
the  property  would  be  separated  into  as  many  equal  jDor- 
tions  as  the  number  of  dead  sons,  and  the  different  sets  of 
grandchildren  would  inherit  their  fathers'  share.  This  is 
called  inheriting  jper  stirijem,  by  the  stock,  and  not  per 
capita^  by  the  heads  or  individuals. 

§  567.  By  the  primitive  law,  as  we  have  seen,  an  eman- 
cipated child  lost  all  family  rights,  and,  among  others,  that 
of  inheritance.  In  the  course  of  time  the  praetorian  legisla- 
tion practically  rej)ealed  this  unnatural  rule,  and  gave  eman- 
cipated children  virtually  the  same  rights  of  inheritance  as 
those  enjoyed  by  children  remaining  under  the  paternal 
power.  This  was  done  by  one  of  those  fictitious  or  verbal 
distinctions  invented  by  the  praetors  to  promote  justice,  and 
the  same  contrivance  Mas  extended  to  numerous  other 
cases.  As  the  strict  law  deprived  the  emancipated  child 
of  a  legal  right  of  inheritance,  the  praetor  could  not  openly 
and  in  terms  annul  this  rule  ;  judicial  legislation  does  not 
proceed  in  this  defiant  way.  As  he  could  not  make  the 
emancipated  child  a  technical  heir,  the  magistrate  declared 
him  entitled   :o  a  possession  of  the  goods  (^bonoi-um  pos- 


SUCCESSION    TO    AN    INTESTATE.  331 

sessio),  and  as  this  right  was  supported  by  judicial  interven- 
tion, although  the  name  of  heir  was  not  bestowed,  the  privi- 
leges were.  This  device  of  honorum  ^ossef^sio  became  a 
conmion  means  of  conferring  rights  of  property  upon  those 
who,  by  the  arbitrary  rules  of  the  primitive  law,  were  de- 
prived of  them. 

§  568.  By  the  ancient  law  the  descendants  of  daughters 
and  of  granddaughters  were  not  included  with  the  descend- 
ants of  sons,  as  the  direct  heirs  of  the  deceased.  The  Em- 
perors Yalentinian,  Theodosius,  and  Arcadius,  abolished  this 
distinction,  but  at  the  same  time  directed  that  the  shares  in 
the  inheritance  of  these  descendants  in  the  female  line 
should  be  somewhat  less  than  those  of  the  heirs  in  the  male 
line. 

§  569.  When  there  were  no  direct  descendants,  or  those 
whom  the  praetor  regarded  as  such,  the  ancient  law  declared 
the  next  class  of  persons  to  whom  the  inheritance  should 
fall,  to  be  the  agnats,  or  collateral  relations  of  the  intestate 
on  the  male  side,  among  which  would  be  brothers,  uncles, 
and  cousins  on  the  father's  side.  Thus  there  were  many 
degrees  of  agnation,  but  the  right  of  inheritance  did  not 
belong  to  all,  but  to  those  only  who  were  in  the  nearest  de- 
gree. If  the  deceased  left  brothers,  they  would  succeed  to 
the  estate  to  the  exclusion  of  uncles,  cousins,  and  all  other 
remoter  degrees  of  consanguinity.  The  ancient  rules  of 
preference  for  males  was  effectually  broken  down  by  the 
praetors  and  the  imperial  constitutions,  and  shares  in  the  in- 
heritance, under  the  name  of  possession  of  the  goods,  were 
given  to  females  collaterally  related  to  the  deceased  on  the 
father's  side,  as  sisters,  aunts,  and  cousins.  Thus  tLe  moth- 
er was  allowed  to  share  in  the  estates  of  her  children.  Many 
special  rules  were  adopted,  regulating  the  order  of  succes- 
sion among  these  collateral  relations,  but  it  is  not  necessary, 
tor  the  purposes  of  this  work,  to  enter  upon  this  detail. 

§  5Y0.  When  there  were  no  relations  of  the  two  former 
classes,  i;o  direct   descendants,  and  no  collaterals  related 


332  THE   ROMAN    LAW. 

through  the  father  of  the  intestate,  or  agnats,  then  those 
collaterals  related  through  the  mother,  or  cognats,  were 
called  to  the  saccession,  in  the  order  of  their  proximity. 

§  571.  TJifc  rules  defining  the  various  degrees  of  consan- 
guinity were  very  minute  and  particular.  Starting  from  a 
given  individual,  there  were  three  kinds  or  classes  of  rela- 
tionship to  him ;  the  ascending,  which  included  parents, 
grandparents,  and  other  ascendants  ;  the  descending,  which 
included  children,  grandchildren,  and  other  descendants ; 
and  the  collat^.^ral,  which  included  brothers  and  sisters,  un- 
cles and  aunts,  cousins,  and  the  like.  In  these  classes  of  re- 
lationship there  were  various  grades.  The  first  grade  of  re- 
lations to  an  individual  included  his  father  and  mother,  sons 
and  daugliters ;  the  second  grade  embi-aced  his  grandpar- 
ents and  grandchildren,  and  brothers  and  sisters  ;  the  third 
degree  of  consanguinity  included  his  great  grandparents  and 
great  grandchildren,  the  brothers  and  sisters  of  his  father 
and  mother,  or  uncles  and  aunts,  and  the  children  of  his 
brothers  and  sisters,  or  nephews  and  nieces. 

§  572.  These  niles,  which  make  the  grandparent  and 
grandchild  in  tlie  same  degree  of  relationship  to  an  individ- 
ual as  his  own  brothers  and  sisters,  and  which  are  therefore 
60  different  from  our  own,  require  some  explanation.  By 
the  Roman  law,  the  Canon  law,  or  that  introduced  by  the 
church,  and  the  English  and  American  law,  the  degrees  of 
relationship  in  the  direct  ascending  and  descending  lines  are 
reckoned  in  the  same  way.  Thus,  commencing  with  the 
individual,  each  remove  among  ancestors  or  descendants, 
constitutes  one  degree.  This  is  natural  and  universal.  In 
counting  the  degrees  of  relationship  between  an  individual 
and  persons  in  collateral  lines,  such  as  brothers,  uncles, 
cousins,  the  Roman  law  also  commenced  at  the  individual 
in  question,  reckoned  up  the  ascending  line  step  by  step, 
until  it  came  to  the  common  ancestor  of  himself  and  his  re- 
lation in  the  collateral  line,  and  then  down  that  line,  until  it 
oame  to  that  relative.     Thus,  to  determine  the  degree  of 


DEGREES    OF   CONSANGUmiTY.  333 

consanguiiiitj  between  a  man  and  his  brother  or  sister,  the 
law  commenced  with  the  individual,  and  counted  one  step 
up  to  the  father,  and  then  one  more  down  to  the  brother, 
making  brothers  and  sisters  two  degrees  removed  from  each 
other.  The  degree  of  consanguinity  between  an  individual 
and  his  uncle  and  aunt,  was  thus  estimated  :  commencing 
with  himself,  the  grandfather,  their  common  ancestor,  was 
two  degrees  removed,  and  from  the  latter  to  his  son,  the 
uncle  in  question,  was  one  more  step,  making  three  in  all. 
The  relationship  between  an  individual  and  his  nephews  and 
nieces  v/as  determined  in  the  same  way ;  from  him  to  his 
father  was  one  degree,  and  from  that  father  to  his  son,  and 
again  to  his  children,  the  nephews  or  nieces  in  question,  were 
two  additional  steps.  The  Roman  law  thus  commenced  its 
count  in  all  cases  at  the  same  point.  The  Canon  law  of  the 
Church  of  Rome,  and  after  it  the  common  law  of  England 
and  America,  in  estimating  the  degrees  between  collaterals, 
commenced  at  the  common  ancestor  of  the  individual  and 
his  relative  in  question,  and  counted  down  either  one  of 
these  lines  if  they  were  equal,  and  the  longer  one,  if  they 
were  unequal.  Thus  the  relationship  between  brothers  and 
sisters  is  the  first  degree ;  because,  commencing  with  the 
common  ancestor,  the  father,  and  counting  down  either 
line,  one  step  brings  us  to  either  brother  or  sister.  The  re- 
lationship between  an  individual  and  his  uncle  or  aunt  is  in 
the  second  degree ;  because,  commencing  with  the  individ- 
ual's grandfather,  the  common  ancestor  of  the  two  rela- 
tions, and  counting  down  the  longer  line,  after  two  removes, 
we  come  to  the  individual  in  question.  The  relationship 
between  an  individual  and  his  nephew  or  niece  is  also  of 
the  second  degree ;  for,  commencing  with  the  common  an- 
cestor, the  individual's  father,  and  counting  down  the  longer 
line,  in  two  steps  we  come  to  the  nephew  or  niece  in  ques- 
tion. This  distinction  between  the  methods  of  the  Roman 
law  and  of  the  Canon  law,  in  estimating  the  consanguinity 
between  persons  collaterally  related,  is,  I  hope,  sufficiently 


334  THE   KOMAN   LAW. 

clear.  The  rule  here  stated  will  easily  indicate  how  other 
degrees  were  reckoned. 

§  573.  3,  Succession  to  an  entire  Estate  ly  Adrogation. 
— This  took  place  when  a  person  of  full  age,  and  not  under 
another's  power,  having  property,  caused  himself  to  be 
adopted  by  another.  '  The  adoptor  took  all  the  estate,  and 
became  liable  for  the  debts. 

§  574.  4.  Succession  hy  the  Sale  of  a  DelAor's  Property. — 
The  fourth  mode  of  acquiring  the  entire  property  of  another 
was  similar  in  its  design  to  the  operation  of  our  bankrupt 
and  insolvent  laws.  When  a  defendant  was  summoned  to 
appear  in  court,  and  he  absconded  or  refused  to  appear,  his 
creditors  could  make  application  to  the  magistrate  to  have 
his  property  sold.  If  the  refusal  to  appear  was  persisted  in, 
the  application  was  granted,  and  after  thirty  days  the  entire 
estate  was  sold,  upon  the  condition  that  the  purchaser  would 
pay  one  half  of  the  defendant's  debts.  ^  The  purchaser  thus 
succeeded  to  the  debtor,  became  invested  with  his  rights  of 
property,  and  was  subjected  to  the  burden  of  one  half  his 
debts.  Justinian  altered  this  law,  and  ordered  that  credit- 
ore  should  api^ly  to  the  prastor  for  a  sale  of  the  defaulting 
debtor's  goods  in  such  manner  as  would  be  most  beneficial, 
either*  in  parcels,  or  in  one  mass,  and  that  the  purchasers 
should  only  be  liable  for  the  price  which  they  had  bid,  while 
the  total  proceeds  should  be  divided  among  the  creditors, 
toward  discharging  their  several  claims.  Tliis  enactment 
was  virtually  the  same  as  the  modern  bankrupt  and  insol- 
vent laws. 

Third.    Of  Ohligations. 

%  575.  The  third  grand  division  of  the  Roman  law  was 
that  relating  to  obligations.  In  this  were  included  those  re- 
ciprocal rights  and  duties  which  aj-ise  among  individuals  by 
rcaeon  of  their  transactions  with  each  other.  An  obligation 
was  defined  to  be  the  bond  of  the  law,  by  M'hich  a  person 


OBLIGATIONS    ARISING   FROM   CONTRACT.  335 

was  obliged  to  make  some  payment,  according  to  the  laws 
of  the  country.  It  included  only  those  perfected  rights 
which  were  recognized  by  the  law,  and  could  be  enforced 
in  the  tribunals,  and  not  mere  moral  obligations  which  had 
not  been  stamped  with  a  legal  sanction.  Some  of  these 
obligations  arose  from  the  provisions  of  the  strict  civil  law, 
others  sprang  from  the  praetorian  legislation.  In  fact,  it  is 
m  this  department  of  the  Roman  jurisprudence  that  we 
most  plainly  see  the  work  of  the  praetors  in  modifying  and 
adding  to  the  severe  and  meagre  requirements  of  the  primi- 
tive law. 

Obligations  were  divided  into  four  classes  ;  those  arising 
from  express  contract  (ex  contractu) ;  those  arising  from 
implied  contracts  (quasi  ex  contractu) ;  those  arising  from 
actual  wrongs  (ex  maleficio) ;  and  those  arising  from  con- 
structive wrongs  (quasi  ex  maleficio). 

§  576.  I.  Obligations  arising  from  Contracts. — Tliere 
were  four  divisions  of  these  obligations  :  1.  Contracts  per- 
fected by  the  thing  (re),  which  was  the  subject  matter  of 
the  agreement,  or  real  contracts ;  2.  Those  arising  from 
words  (verbis),  or  verbal  contracts  ;  3.  Those  committed  to 
writing  (litteris) ;  4.  Tliose  .arising  from  the  consent  of  the 
parties  alone.     These  will  be  considered  in  order. 

§  5YT.  1.  Real  Contracts. — A  real  contract  depended 
upon  two  elements;  the  agreement  or  consent  of  the  par- 
ties, and  the  actual  transfer  of  the  thing  which  was  the  sub- 
ject matter  of  the  bargain,  from  one  to  the  other.  The 
class  included  several  species. 

Mutuum  or  Loan  arose  when  anything  having  weight, 
number,  or  measure,  had  been  delivered  by  the  owner  to 
another,  with  the  understanding  that,  not  the  identical  arti- 
cle, but  others  of  the  same  nature  and  value,  should  be  re- 
turned. In  this  transactioji  the  thing  loaned,  such  as  money, 
corn,  wine,  became  the  property  of  the  receiver  for  him  to 
use  as  he  saw  fit,  but  the  obligation  rested  upon  him  to  re- 


336  THE   ROMAN    LAW. 

store  another  of  the  same  kind,  amount,  and  value  to  the 
lender.  As  the  property  passed  to  the  borrower,  if  the 
thing  became  accidentally  destroyed  without  his  fault,  he 
was  still  not  freed  from  the  duty  of  restoring  it.  Upon  fail- 
ure to  make  retm-n  at  the  time  agreed  upon,  the  lender 
could  enforce  the  obligation  by  an  action,  which  was  recog- 
nized by  the  primitive  law. 

§  578.  Commodatum^  another  of  these  real  contracts, 
was  the  gratuitous  loan  of  an  article,  with  the  uuderatand- 
ing  that  the  identical  tiling  was  to  be  restored  at  the  expir- 
ation of  the  stipulated  time.  In  this  contract  the  property 
did  not  pass  to  the  recipient.  As  the  transaction  M-as  en- 
tii-ely  for  the  borrower's  benefit,  he  was  liable  to  the  owner 
not  only  for  the  loss  of  the  thing  through  his  own  fraud, 
but  even  through  his  slightest  negligence  ;  he  was  bound  to 
use  toward  it  the  utmost  care  and  diligence. 

§  579.  Depositum. — The  contract  of  deposit  arose  when 
one  entrusted  an  article  with  another  for  gratuitous  safe- 
keeping, until  it  should  be  demanded  back  again.  The  ob- 
ligation rested  upon  the  depositary  to  make  restitution  of 
the  very  thing  when  it  was  called  for.  As  this  contract  waa 
made  entirely  for  the  benefit  of  the  depositor,  a  loss  of  the 
article  did  not  fall  upon  the  receiver  if  he  took  the  same 
care  of  it  which  he  did  of  his  own  property,  but  he  was  lia- 
ble for  a  loss  occasioned  by  fraud. 

§  580.  Pignng^  or  Pledge. — This  contract  arose  when  a 
debtor  deposited  an  article  ^\^th  his  creditor  as  security  for 
the  payment  of  the  debt.  The  obligation  rested  upon  the 
receiver  to  restore  the  identical  thing  when  the  claim  was 
satisfied,  but  the  pledger  could  not  claim  and  recover  it 
back  until  he  had  discharged  the  debt.  This  species  of  eon- 
tract  was  one  of  beaefit  to  both  parties,  and  therefore  re- 
quired diligence  on  the  part  of  the  creditor  in  keeping  the 
thing  pledged  ;  but  if  it  were  injured  or  destroyed  by  acci- 
dent, he  was  not  answerable  for  its  value. 

The  three  latter  contracts,  commodatum,  depositum  and 


VERBAL    CONTEACTS.  337 

pledge,  witli  tlieir  general  incidents,  have  been  borrowed 
from  the  Roman  and  incorporated  into  tbe  English  and 
American  law,  and,  with  some  others  to  be  described,  form 
a  class  technically  known  as  bailments. 

§  581.  2.  Contracts  arising  from  Words. — A  verbal  con- 
tract was  made  in  the  form  of  question  and  answer,  and  was 
technically  known  as  a  stipulation.  This  form  of  a  question 
put  by  one  contracting  party,  and  an  answer  from  the  other, 
was  common,  and  extended  back,  as  we  have  seen,  to  the 
earliest  stages  of  the  Roman  law.  A  verbal  promise  given 
without  the  formal  interrogatory  was  considered  as  nudum 
pactum,  and  gave  rise  to  no  obligation  which  the  law  recog- 
nized. Anciently,  the  use  of  particular  words  was  neces- 
sary, such  as  spondes  f  sjpondeo  /  promittes  f  promitto  /  Jide- 
p>roinittes  ?  fide-promitto  /  daljis  f  ddbo  /  fades  ?  faciam. 
But  the  later  constitutions  did  away  with  the  necessity  of 
these  sacramental  words,  and  only  required  the  understand- 
ing and  consent  of  each  party,  expressed  by  any  language. 

§  582.  Some  stipulations  were  to  be  performed  imme- 
diately ;  others  at  a  certain  future  day ;  and  the  performance 
of  others  was  made  to  depend  upon  a  condition.  Not  only 
the  delivery  of  things,  or  payment  of  money,  but  the  per- 
formance of  specified  acts,  could  be  made  the  subject  of 
stipulations.  In  the  latter  case  it  was  common  to  introduce 
a  penalty  to  be  borne  by  the  party  who  neglected  to  do  the 
act  agreed  upon.  Thus  the  stipulation  would  require  the 
person  to  do  a  certain  act,  or  to  pay  a  definite  sum  of  money 
in  case  of  failure.  When  the  person  died  in  whose  fa  ror 
the  agreement  was  made,  the  rights  under  it  passed  to  his 
heir. 

§  583.  These  particular  forms  of  contract  were  entered 
into  under  various  circumstances  ;  some  were  the  voluntaiy 
engagements  of  the  parties  ;  others  were  imposed  by  judges 
or  magistrates,  as  when  security  was  ordered  to  be  given 
against  fraud,  or  against  apprehended  damage. 

§  584.  Stipulations  were  void  when  they  related  to  ob- 
22 


33 S  THE   ROMAN    LAW. 

jects  not  in  existence,  or  to  things  whicli  could  not  be  the 
objects  of  private  property  ;  or  if  they  engaged  that  a  third 
person  should  give  or  do  something ;  or  if  the  party  to 
whom  the  question  was  put  did  not  answer  it  pertinently 
and  directly ;  or  if  they  were  made  between  a  person  and 
another  under  his  power,  or  by  a  deaf  and  dumb  person,  or 
a  madman,  or  by  a  pupil  without  the  consent  of  his  tutor ; 
or  if  their  perforniance  depended  upon  an  impossible  con- 
dition. If  a  person  acknowledged  in  a  written  instrument 
that  he  had  entered  into  an  obligation  by  promise,  it  would 
be  presumed  that  the  promise  was  regularly  made  in  the 
form  of  a  stipulation, 

§  585.  Sometimes  other  2)ersons  bound  themselves  for 
the  principal  promiser,  and  were  then  called  fide-jussores, 
or  sureties.  Sureties  might  be  taken  for  the  performance 
of  any  kind  of  contract.  When  there  were  several  sureties, 
each  was  bound  for  the  whole  debt,  and  the  creditor  could 
demand  it  from  any  of  them.  By  a  late  constitution,  how- 
ever, the  creditor  miglit  be  compelled  to  demand  and  recov- 
er a  proportional  part  from  each  solvent  surety.  The  obli- 
gation of  the  surety  could  not  be  greater,  though  it  might 
be  less,  than  that  of  the  principal  debtor.  "When  a  surety 
had  been  obliged  to  pay  money  for  his  principal,  he  had  a 
right  to  recover  it  back  from  him  by  an  action  appropriate 
for  that  purpose. 

§  586.  3.  Contracts  in  Writing. — The  name  explains  the 
character  of  this  class  of  contracts.  The  only  peculiarity  no- 
ticed in  regard  to  them  was,  that  if  a  man  had  acknowl- 
edged in  writing  that  he  owed  what  in  reality  he  had  never 
received  and  did  not  owe,  he  was  not  permitted  to  set  up 
the  truth  as  a  defence  after  two  years ;  should  this  time 
have  elapsed  he  was  absolutely  bound  by  his  confession. 

§  587.  4.  Contracts  founded  iijpon  mere  Consent.  This 
class  of  contracts  was  very  extensive,  and  it  entered  into  all 
the  ordinary  business  and  affairs  of  life.  It  included  pur- 
chase and  sale,  letting  and  hiring,  partnership,  and  agenej' 


SALE HIRING.  339 

or  mandate  These  contracts  were  said  to  be  founded  on 
consent,  because  neither  writing,  nor  the  technical  form  of 
stipulation,  was  necessary  to  their  vahditj ;  indeed,  the 
parties  themselves  need  not  have  been  mutually  present 
when  the  agreement  was  consummated.  In  entering  into 
them,  the  parties  were  bound  to  do  what  was  just  and  right, 
and  the  extent  of  this  obligation  the  law  defined. 

§  588.  PurcTiase  and  Sale. — This  contract  was  completed 
as  soon  as  the  price  was  agreed  upon,  although  it  had  not 
been  paid.  But  when  the  agreement  was  to  be  in  writing, 
it  was  not  absolute  until  the  writings  were  made  and  signed. 
Tlie  price  must  be  money,  and  certain  in  amount,  for  if  it 
were  only  some  other  article,  the  exchange  would  be  a  mere 
barter,  and  not  a  sale.  As  soon  as  the  price  was  agreed 
upon,  unless  the  contract  were  in  writing,  the  thing  sold  was 
at  the  risk  of  the  buyer,  although  not  yet  delivered,  and  if 
the  article  should  be  destroyed,  the  loss  would  fall  on  him, 
but  if,  on  the  other  hand,  the  thing  should  increase  in  value, 
the  gain  would  be  his. 

§  589.  Letting  and  Hiring. — This  contract  was  quite 
similar  to  purchase  and  sale,  and  was  governed  by  the  same 
rules.  It  was  completed  as  soon  as  the  amount  of  the  hire 
was  agreed  upon.  Both  the  letter  and  the  hirer  could  en- 
force the  obligation  against  the  other  for  any  breach  of  the 
contract.  To  constitute  the  agreement  technically  one  of 
letting  and  hiding,  the  hire  should  be  certain  in  amount ;  but 
if  it  were  not,  as  if,  for  example,  a  man  should  send  his 
clothes  to  a  tailor  to  be  mended  without  any  definite  under- 
standing as  to  the  price,  either  party  could  sue  the  other  for 
any  failure  of  duty,  by  one  of  those  equitable  actions  in- 
vented by  the  praetors,  called  actions  prcescriptis  verbis, 
which  were  adapted  to  the  circumstances  of  each  particular 
case,  without  reference  to  any  well-known  formulas. 

§  590.  One  species  of  letting  and  hiring  related  entirely 
to  lands,  and  was  called  eonjphyteusis.  This  took  place  when 
the  owner  of  lands  let  them  to  a  tenant  for  ever,  upon  con- 


340  THE   ROMAN   LAW. 

dition  that  if  a  certain  yearly  rent  be  j)aid,  the  proprietor 
or  liis  heirs  could  not  take  them  away  from  the  tenant  or 
his  heirs,  or  from  any  person  to  whom  they  had  been  sold. 
This  method  of  transferring  landed  property  was  somewhat 
common  in  the  provinces.  Of  course,  the  tenant  could  sell 
his  estate  or  devise  it  by  will,  and  in  whosesoever  hands  it 
might  be,  it  would  be  encumbered  with  the  annual  rent. 
A  jjerson  acquainted  with  the  internal  policy  of  the  State 
of  New  York,  will  recognize  the  similarity  between  these 
Roman  species  of  estates,  and  those  common  in  the  old  ma- 
nors near  the  Hudson  river,  which  have  occasioned  so  much 
legal  controversy  and  even  violence.  In  these  latter  the 
lands  were  originally  conveyed  to  the  tenants  and  their 
heirs  for  ever,  on  condition  that  an  annual  rent  was  paid  to 
the  landlord. 

§  591.  It  was  often  a  matter  of  diflSculty  to  decide 
whether  a  transaction  gave  rise  to  the  contract  of  sale,  or 
that  of  hiring.  If  a  person  should  employ  a  goldsmith  to 
make  a  number  of  rings  and  to  furnish  the  gold,  this  would 
be  a  contract  of  sale ;  but  if  he  should  furnish  tlie  gold  him- 
self, and  agree  to  pay  the  smith  for  his  workmanship),  this 
would  be  a  hiring. 

Tlie  hirer  was  bound  to  use  the  same  care  and  diligence 
with  the  thing  hired,  that  he  would  with  his  own  property. 

§  592.  Partnership. — Contracts  of  partnership  were 
formed  for  the  same  purpose  as  at  the  present  day,  and 
were  either  general  or  siDecial.  General  partnership  com- 
prised all  the  business  transactions  of  the  parties,  and  in- 
volved an  entire  community  of  all  their  goods.  Special  part- 
nerships were  entered  into  to  carry  on  some  single  species 
of  commerce.  When  no  special  agreement  was  made,  the 
partners  shared  the  profits  and  losses  equally,  but  it  was 
possible  for  them  to  make  any  ai-rangement  they  pleased  in 
reference  to  furnishing  the  capital  and  participating  in  the 
gains.  A  partnership  might  be  dissolved  by  the  withdraw- 
al of  any  partner  at  will.     It  was  ended,  also,  by  the  death 


IMPLIED    CONTRACTS.  341 

of  a  partner  ;  by  the  completion  of  the  business  for  which  it 
was  formed  ;  by  the  public  sale  or  confiscation  of  all  the 
property  of  a  partner ;  and  by  the  giving  up  by  a  partner 
of  all  his  goods,  to  be  sold  for  his  debts.  A  partner  was 
bound  to  use  the  same  care  and  diligence  with  respect  to 
the  common  property  that  he  used  with  his  own. 

§  593.  Mandatum. — A  mandate  was  the  contract  which 
arose  when  one  person  committed  some  trust  or  business  to 
another,  to  be  undertaken  and  discharged  gratuitously,  and  • 
the  latter  accepted  the  commission.  The  agent,  in  such  a 
case,  was  bound  to  fulfil  his  instructions  accurately,  and  the 
employer  or  mandator  was  bound  to  ratify  all  that  was  done 
within  the  scope  of  his  directions.  Mandates  were  divided 
into  five  kinds  :  those  solely  for  the  benefit  of  the  employer  ; 
those  jointly  for  his  benefit  and  that  of  the  agent ;  those 
solely  for  the  benefit  of  a  third  person  ;  those  jointly  for  the 
benefit  of  the  employer  and  the  third  person  ;  and  those  joint- 
ly for  the  benefit  of  the  agent  and  a  third  person.  A  man- 
date might  be  revoked  by  the  employer  at  his  pleasure  before 
any  act  had  been  done  under  it.  It  was  ended  by  the  death 
of  either  party  ;  but  if  the  agent,  in  ignorance  of  the  prin- 
cipal's death,  should  do  anything  pursuant  to  his  instruc- 
tions, the  representative  of  the  principal  was  bound  thereby. 

§  594.  II.  Obligations  arising  Quasi  ex  Contractu,  or 
FROM  Implied  Contracts.- — The  following  are  examples  of 
these  obhgations.  When  one  person  not  specially  directed 
or  commanded  undertook  to  transact  the  business  of  another 
who  was  absent,  each  was  bound  to  the  other  by  an  implied 
contract ;  the  agent  to  use  the  utmost  diligence  and  faithful- 
ness in  the  perfoi-mance  of  his  duties  ;  and  the  principal  to 
reimburse  the  agent  for  necessary  expenditure. 

The  mutual  obligations  of  tutors  and  pupils  toward  each 
other  were  also  considered  as  based  upon  an  implied  con- 
tract. 

When  lands  were  owned  in  common  by  two  or  more 


342  THE   ROM^VN    LAW. 

persons  not  partners,  such  as  heirs,  the  obligation  resting 
upon  theui  to  divide  the  fruits  and  profits  and  expenses,  be- 
longed to  this  class,  as  did  also  the  duty  of  an  heir  to  deliv- 
er a  legacy  to  a  legatee. 

"When  a  debt  not  due  had  been  paid  to  a  person  by  mis- 
take, he  was  bound  by  an  implied  contract  to  refund  it. 

§  595.  III.  Of  the  methods  by  which  Obligations  aris- 
ing FKOM  Express  or  Implied  Contracts  might  be  satisfied 
and  discharged. — These  might  be  satisfied  and  discharged, 

1st.  By  payment  of  the  amount  due,  whether  by  the 
debtor  himself  or  by  another.  The  payment  by  the  debtor 
also  discharged  his  sureties. 

2d.  By  Acceptilation.  This  was  an  imaginary  payment, 
and  took  place  when  the  creditor  was  vdlling  to  remit  the 
debt.  It  was  in  form  a  stipulation.  The  debtor  asked  the 
creditor,  "  Do  you  consider  what  I  promised  you  as  accept- 
ed and  received  by  you  ?  "  The  creditor  replied,  "  I  do." 
Under  tliis  form  any  species  of  contract  might  be  discharged, 
whether  for  the  payment  of  money  or  the  performance  of 
any  act,  for  all  contracts  could  be  reduced  to  the  form  of  a 
verbal  stipulation,  and  afterward  remitted. 

3d.  By  Novation.  When  the  creditor  took  a  new  secur- 
ity for  debt  from  another  person,  the  original  contract,  by 
the  law  before  Justinian,  was  discharged  by  novation.  So 
a  new  stipulation  taken  from  the  debtor  himself,  which  added 
anything  to  the  old  contract,  discharged  it.  Justinian  al- 
tered the  law,  by  declaring  that  novation  should  only  have 
effect  to  destroy  the  original  obligation  when  the  parties 
had  BO  expressly  agreed. 

Finally,  obligations  arising  upon  contracts  might  be  dib- 
solved  by  mutual  consent  of  the  parties. 

§  596.  IV.  Obligations  arising  ex  Maleficio. — Of  these 
there  were  three  classes  ;  Furtnm,  or  Theft ;  Damnum^  or 
Damage  ;  and  Iiijuria,  or  Injury. 


FURTUM DAMNUM — INJURIA.  343 

Fiirtum. — Tlieft  was  the  wrongful,  secret  taking  of  an- 
other's property,  with  a  view  to  gain,  and  with  the  intent 
to  steal.  Thefts  were  manifest,  if  the  person  was  taken  in 
the  act  of  thieving,  or  in  the  place  where  lie  committed  the 
crime,  or  when  seen  in  possession  of  the  stolen  article.  All 
other  thefts  were  not  manifest.  Persons  who  knowingly  re- 
ceived and  concealed  stolen  goods,  and  those  who  aided 
them,  were  also  liable  as  thieves.  The  penalty  of  commit- 
ting a  manifest  theft  was  quadruple  the  value  of  the  thing 
stolen,  and  of  a  theft  not  manifest,  double  the  value,  in 
either  case  to  be  recovered  from  the  thief  in  an  action.  This 
action  might  be  brought  by  any  person  who  had  an  interest 
in  the  safety  of  the  thing  stolen,  even  though  he  were  not 
the  owner.  Robbery,  or  taking  the  property  of  another  by 
force,  was  also  considered  as  a  species  of  theft,  and  gave  rise 
to  the  same  obligations. 

§  597.  Damnum^  or  damage. — If  a  person  through  care- 
lessness injured  or  destroyed  the  property  of  another,  he 
was  liable  to  the  owner  for  the  amount  of  the  damage. 
The  element  of  carelessness  was  necessary  to  give  rise  to  the 
obligation  to  make  reparation,  and  this  was  applied  with 
nice  discrimination  to  many  particular  cases.  As  examples : 
if  a  soldier  exercising  with  his  javelin,  in  a  place  appointed 
for  that  pui-pose,  should  accidentally  kill  a  slave,  he  was  not 
liable  to  the  master ;  but  if  this  happened  in  any  other 
place,  or  by  any  other  person  than  a  soldier,  the  obligation 
arose.  If  a  person  felling  the  limb  of  a  tree  should  chance 
to  kill  a  slave,  he  was  liable  for  his  value,  if  it  was  done  near 
a  public  road  or  path  without  any  public  warning ;  but  if 
warning  had  been  given,  or  the  act  was  done  in  a  field, 
away  from  the  road,  the  liability  to  make  reparation  did 
not  follow.  A  surgeon  who,  through  want  of  care  or  skill, 
should  kill  a  slave  on  whom  he  was  attending,  was  answer- 
able for  his  value. 

§  598.  Injicria,  or  injury. — Tlie  injuries  which  gave  rise 
to  obligations  that  might  be  enforced  by  civil  actions,  were 


344  THE   ROMAN    LAW. 

numerous.  Such  vrere  beating,  ^rounding,  slanders,  libels, 
and  attempts  on  the  chastity  of  vii-tuous  females.  If  the 
injury  wei'e  done  to  a  person  under  another's  power,  the 
latter  might  bring  an  action  for  reparation.  Thus  the  hus- 
band or  father  might  sue  for  an  injury  done  to  wife  or  child. 
When  the  injuiies  were  accompanied  by  aggravating  cir- 
cumstances, the  compensation  was  increased.  Not  only 
those  who  actually  committed  the  injmy,  but  those  also 
who  counselled  or  procured  it  to  be  done,  were  liable. 

§  599.  Y.  Obligations  arising  Quasi  ex  Maleficio,  ob 
FROM  Constructive  Wrongs. — Certain  acts  not  enumerated 
under  the  classes  of  strict  wrongs,  still  gave  rise  to  obliga- 
tions in  the  nature  of  those  ex  Tnaleficio.  If  a  judge  gave  a 
wrong  judgment  through  imprudence  or  want  of  skill,  he 
was  liable  in  an  action  to  the  party  injured.  So  the  occu- 
pant of  a  cliamber  from  which  anything  had  been  thrown 
or  spilled  or  hung,  that  caused  damage,  was  liable.  The 
master  of  a  ship  or  tavern  was  liable  for  any  damage  or 
theft  done  by  his  servants.  These  examples  will  serve  to 
illustrate  this  class  of  obligations. 

THE  ROMAN  LAW  DURING  THE  MIDDLE  AGES,  AND  ITS  CONNECTION 
WITH  MODERN  JURISPRUDENCE. 

§  600.  The  body  of  law  of  which  I  have  just  given  a 
mere  outline,  had  been  extended  over  all  the  proWnces  of 
the  empire,  and  had  effectually  supplanted  the  customs  and 
legislation  of  the  conquered  nations.  In  Gaul  the  trans- 
formation had  been  complete ;  the  Roman  manners  and 
language  had  been  universally  adopted.  Tlie  western  em- 
pire, however,  had  sunk  under  the  attacks  of  the  Germans 
before  the  Emperor  Justinian  collected  the  law  and  pub- 
lished it  in  a  codified  form  for  the  eastern.  Gaul,  Spain, 
Britain,  and  Italy  passed  from  under  the  Roman  dominion 
into  that  of  the  rude  barbarians,  but  still  an  element  of  the 
imperial  civilization  was  left,  which,  never  entirely  crushed, 


PEKSONAL   LAWS.  345 

possessed  life  enougli  to  maintain  its  continued  existence, 
and  finally  to  assert  an  equality,  at  least,  with  the  national 
forces  of  the  Germans. 

§  601.  When  the  power  of  the  German  peoples  had  be- 
come complete  over  Italy  and  the  provinces  of  Gaul  and 
Spain,  the  invaders  did  not  destroy  the  Romans,  nor  absorb 
them  into  their  own  numbers,  nor  impose  upon  them  a  new 
law.  Each  race,  living  side  by  side  on  the  same  soil,  pre- 
served, and  yielded  obedience  to,  its  own  laws,  which  were 
thus  no  longer  territorial,  as  coextensive  with  the  limits  of 
a  specified  territory,  and  governing  all  the  inhabitants 
thereof,  but  "  personal,"  as  they  applied  to  different  classes 
of  persons  dwelling  in  the  same  country.  Thus,  within  the 
limits  of  the  Frankish,  or  other  Germanic  dominions,  there 
existed  simultaneously,  at  least  two,  and  sometimes  more, 
difierent  sets  of  laws.  According  to  the  general  rule,  each 
person  was  subjected  to  the  law  of  his  birth,  Roman  to  Ro- 
man, Frank  to  Frankisli,  or  Burgundian  to  Burgundian. 
Upon  marriage,  the  wife  passed  under  that  of  her  husband, 
and  if  she  became  a  widow,  she  reverted  to  that  of  her  own 
nation.  Ecclesiastics,  however,  were  under  the  Roman  law, 
whatever  might  have  been  their  nationality.  In  judicial 
trials,  originally,  the  personal  law  of  the  defendant  furnished 
the  rule  by  which  the  controversy  was  decided,  but  this  was 
afterward  altered.  The  law  of  a  person  who  died  intestate 
regulated  the  distribution  of  his  property.  Marriages  were 
contracted  according  to  the  law  of  the  husband,  and  those 
which  had  followed  that  of  the  wife  could  be  annulled,  until 
the  church  interposed  and  ordered  otherwise,  on  religious 
grounds.  Thus  there  existed,  in  the  time  immediately  suc- 
ceeding the  subjugation  of  the  provinces,  side  by  side,  the 
Roman  and  the  barbarian  legislation,  each  applying  to  a 
portion  of  the  population,  each  equally  powerful  over  those 
wlio  owed  it  allegiance,  each  equally  a  law  in  tlie  state. 

§  602.  Such  a  condition  of  internal  policy  could  not  exist 
after  the  people  began  to  make  any  cc  nsiderable  advance  in 


346  THE   ROMAN   LAW. 

civilization,  and  to  become  assimilated  and  homogeneous. 
When  one  race  or  nation  was  predominant,  its  ideas  and 
legislation  must  finally  attain  the  supremacy.  Thus,  in  the 
north  of  France,  the  Romans  were  comparatively  few  ;  the 
Franks  were  greatly  the  superior  in  numbers,  and,  as  a  con- 
sequence, when  the  different  peoples  became  thoronghly 
united  into  one,  their  common  jurisprudence  was  formed 
rather  on  the  Gennan  than  the  Roman  type.  In  the  mid- 
dle and  south  of  France,  however,  the  Romans  were  the 
most  numerous,  and  when  society  had  become  settled,  the 
Roman  ideas  were  taken  as  the  basis  of  their  legislation. 
This  distinction  was  preserved  until  modern  times,  and  even 
to  the  adoption  of  the  code  civil  under  Napoleon  I.,  and  the 
two  sections  of  the  kingdom  were  known,  the  former  as 
jpays  du  droit  coutumier,  and  the  latter  as  jpa/ys  du  droit 
ecrit. 

§  603.  "We  can  now  plainly  see  why  the  Roman  law  did 
not  exert  the  influence  in  shaping  the  early  legislation  of 
Er.gland,  which  it  did  on  the  continent.  The  Saxon  inva- 
ders found  but  slight  remains  of  the  Roman  policy  and  juris- 
prudence ;  whatever  still  existed  was  confined  to  the  muni- 
cipal organization  of  a  very  few  towns.  With  them  there 
was  no  "  personal "  law  ;  all  was  territorial.  The  Saxon 
customs  prevailed,  to  the  exclusion  of  all  others,  throughout 
the  kingdom.  The  Roman  was  not  left  side  by  side  with 
the  other,  to  grow  up  with  it  from  roots  sunk  deep  in  the 
soil.  Whenever  any  portion  of  it  was  adopted,  it  was  im- 
ported from  abroad,  as  something  foreign  to  the  national 
policy. 

§  604.  While  the  private  law  of  the  Romans  was  thus 
presei'ved  in  the  new  continental  kingdoms  formed  out  of 
the  old  provinces,  some  of  their  public  or  political  institu- 
tions were  also  suffered  to  remain,  with  little  modifications. 
This  was  particiilarly  true  of  the  municipal  organizations, 
the  intenial  policy,  government,  and  rights  of  towns  and 
cities.     The  cities  were  a  most  important  element  in  the 


LANDS    LEFT   TO   THE   ROMANS.  347 

Roman  civilization,  and  those  of  the  provinces  bore  a  gene- 
ral resemblance  to  each  other  in  organization,  while  some 
possessed  the  superior  privileges  which  belonged  to  the  soil 
of  Italy.  With  these  towns  the  Germanic  invaders  did  not 
at  first  interfere ;  their  habits  and  feelings  were  strongly 
opposed  to  the  life  of  a  citizen.  The  cities  of  France,  and 
especially  of  Italy,  thus  preserving  many  of  their  ancient 
rights,  became  the  nuclei  for  the  spread  of  ideas  political 
and  legal,  entirely  antagonistic,  at  first  to  the  primitive  Ger- 
manic, and  subsequently  to  the  feudal  policy.  Indeed,  Sa- 
vigny  shows  that  the  Italian  republics  of  the  middle  ages 
were  the  continuation  and  development  of  the  ancient  or- 
der of  things  preserved  through  the  municipalities  from  the 
time  of  the  empire  itself,  and  were  not  new  creations. 

§  605.  When  the  barbarians  effected  a  permanent  settle- 
ment on  the  ruins  of  the  western  empire,  and  made  a  dis- 
tribution of  the  soil  among  themselves,  large  portions  were 
nevertheless  left  in  the  quiet  possession  of  the  ancient  own- 
ers. Among  the  Burgundians  the  whole  territory  was  not 
seized  en  masse,  but  each  separate  Roman  heritage  was  al- 
lotted to  a  Burgundian,  and  so  divided  that  the  new  proprie- 
tor received  one  half  of  the  gardens  and  courtyards,  two 
thirds  of  the  tilled  and  farm  lands,  and  one  half  of  the 
slaves.  Among  the  Yisigoths,  the  Romans  yielded  two 
thirds  of  the  lands.  Among  the  Lombards  and  the  Franks, 
the  same  distribution  took  place,  but  the  respective  shares 
which  were  awarded  to  each  race  do  not  clearly  appear. 

§  606.  The  causes  which  thus  united  to  preserve  the 
Roman  law  alive  in  the  bosom  of  conquering  nationalities, 
the  sufferance  of  it  as  a  "  personal  law  "  for  those  born 
under  its  jurisdiction,  the  preservation  of  much  of  the  an- 
cient provincial  and  Italian  municipal  organizations,  and 
the  leaving  a  portion  of  the  landed  property  in  the  hands 
of  the  onginal  occupants,  which  prevented  them  from  sink- 
ing into  a  condition  of  dependency,  were  strictly  historical. 
By  these  means  this  jurisprudence  still  had  a  foothold  on 


348  THE   KOMAX    LAW. 

the  Boil ;  it  had  a  people  to  govern,  with  whose  public  and 
domestic  life  it  had  become  inseparably  intertwined  ;  it  was 
no  new  and  foreign  element,  but  represented  one  large  and 
influential  portion  of  the  population,  as  the  ruder  German 
customs  and  codes  represented  the  other,  which,  though 
dominant,  was  iiiferior  in  everything  except  physical  force 
and  manly  virtues.  The  two  systems  were  then  at  liberty 
to  develop,  and  to  contribute  toward  the  formation  of  new 
kingdoms  and  nations,  in  a  measure  commensurate  with  their 
relative  merits.  When,  after  the  lapse  of  generations,  the 
two  races  had  become  assimilated  and  united  into  one  peo- 
ple, it  was  found  that  the  old  organizing  power  of  the 
Roman  had  still  asserted  its  supremacy.  In  France,  Spain, 
and  Italy,  the  language  had  been  cast  in  a  Roman  mould, 
and  the  jurisprudence  had  followed  the  Roman  type. 

§  607.  Thus  far  the  effect  had  been  that  of  the  natural, 
inevitable,  and  unconscious  development  of  society.  But 
the  study  and  teaching  of  the  Roman  jurispnidence  as  a 
science,  hastened  its  progress  in  acquiring  power,  and  made 
its  ti-iumph  complete.  This  began  at  Bologna  in  the  twelfth 
century.  A  flourishing  school  then  arose,  whose  reputation 
soon  extended  across  the  Alps.  A  crowd  of  students  from 
all  parts  of  Europe  carried  to  their  own  countries  the  new- 
born science,  propagated  it  by  their  writings,  and  especial- 
ly taught  it  in  their  universities.  The  Lombard  cities,  in 
whose  midst  the  new  school  arose,  had  already  attained  a 
high  degree  of  wealth,  population,  and  power.  The  life 
which  animated  their  connnerce  and  business  demanded  a 
law  much  developed.  The  legislation  of  the  Germans  did 
not  respond  to  their  need,  and  they  were  led  to  the  careful 
study  of  the  compilations  in  which  was  contained  the  wealth 
of  the  Roman  jurisprudence.  There  they  found  a  system 
comjjlete,  comprehensive,  and  minute,  adapted  to  a  people 
engaged  in  commerce,  with  rules  eminently  practical,  and 
at  the  same  time  consistent,  philosophical,  and  just.  Thus 
the  study  revived ;  numerous  schools  sprang  up  over  En- 


CONCLUSION.  349 

rope ;  commentators  upon  the  digests  of  Justinian  were 
multiplied.  The  judges,  for  the  most  part  formed  and  edu- 
cated under  these  influences,  reproduced  in  their  judgments 
the  principles  which  they  had  been  taught,  and  in  time  the 
Roman  jurisprudence  became  the  conmion  law  of  Europe, 
underlying  all  the  separate  national  systems. 

§  608.  The  most  gorgeous  of  pageants,  and  the.  most 
highly  symbolic  of  all  national  acts,  Avas  a  Roman  triumph. 
The  laurel-crowned  and  purple-robed  general,  leading  his 
fierce  and  compact  legions  fresh  from  bloody  battle  fields, 
and  followed  by  long  trains  of  illustrious  or  even  royal  cap- 
tives, and  by  rich  spoils  of  war,  as  he  moved  slowly  along 
the  Sacred  Way,  past  smoking  altars,  and  through  vast 
crowds  of  the  populace  which  poured  out  to  meet  him 
with  their  intoxicating  shouts  of  lo  triumphe,  was  the  living 
exponent  of  Rome's  material  power — a  power  which  never 
rested  until  the  world  was  at  her  feet.  As  the  magnificent 
and  solemn  procession  swept  up  to  the  temple  of  the  Capi- 
toline  Jove,  there  went  with  it  the  ideas  of  universal  domin- 
ion, of  uninterrupted  success  ;  there  was  embodied  in  it  the 
thought  of  Rome  mistress  of  all  nations. 

§  609.  But  the  togaed  praetor  on  his  judgment  seat,  was 
the  exponent  of  a  deeper,  wider,  more  vital  force ;  a  force 
which  penetrated  beyond  the  reach  of  armies,  and  con- 
quered when  those  armies  were  overthrown.  He  represent- 
ed the  Roman  intellectual  power,  the  genius  for  oi"ganiza- 
tion,  the  ideas  of  order,  of  civilization,  of  right  and  justice. 
He  created  a  jurisprudence  which  followed  close  upon  the 
advancing  limits  of  empire,  destroying  old  national  systems, 
and  making  a  people's  subjugation  complete.  He  has  left 
a  work  whose  eftect  on  the  world's  civilization  has  far  sur- 
passed that  of  Greek  philosophy  and  literature,  or  of  Roman 
conquest.  Indeed,  his  life  is  prolonged  to  our  own  times. 
The  Roman  empire  has  crumbled,  the  forum  is  deserted, 
but  the  Roman  prgetor  has  ascended  the  judicial  tribunals 
of  all  modern  nations.     He  sits  by  the  side  of  the  English 


350  THE    ROMAN    LAW. 

chancellor  ;  his  spirit  animates  the  decisions  of  British  and 
American  judges  ;  he  speaks  with  Holt,  and  Mansfield,  and 
Stowell,  with  Kent,  and  Story.  His  influence  will  never 
cease  while  nations  are  impelled  hj  sentiments  of  justice 
and  equity,  and  their  laws  are  formed  upon  a  basis  of  prac- 
tical morality. 


CHAPTEE  lY. 

THE  MARITIME  CODES  OF  THE  MIDDLE  AGES. 

§  610.  That  portion  of  our  municipal  law  which  regu- 
lates the  various  transactions  of  commerce  and  trade,  and 
which  is  sometimes  called  the  Law  Merchant,  deserves 
u  special  mention.  When  we  compare  the  jurisprudence 
of  England  and  of  our  own  country  with  that  of  other 
maritime  and  commercial  nations,  we  shall  find  a  marked 
resemblance  among  them  all,  in  that  department  which  re- 
fers directly  to  the  operations  of  business.  The  reasons  of 
this  general  likeness  are  to  be  found  in  the  nature  of  the 
subject  matter  of  these  laws,  and  in  their  origin.  The  trans- 
actions of  trade  and  commerce  are  not  confined  within  the 
limits  of  any  one  state,  but  are  necessarily  international ; 
and  it  would  be  in  the  highest  degree  injurious  to  the  pros- 
perity of  business  and  the  interests  of  merchants,  if  the 
laws  which  govern  this  widely  extended  intercourse,  were 
stamped  with  a  local  character,  and  were  greatly  variant  in 
different  countries.  The  anxiety  which  the  courts  and  le- 
gislators of  any  particular  state  have  over  the  welfare  of 
their  own  citizens  and  countrymen,  has  therefore  produced, 
and  will  continue  to  produce,  an  agreement  in  the  special 
rules  embraced  in  this  department  of  municipal  law.  An- 
other reason  for  this  general  resemblance  is  to  be  found  in 
the  fact  that  mercantile  law  does  not  rest  upon  the  national 
institutions  and  customs  of  any  particular  country  as  its 


353  THE   MARITIME   CODES    OF   THE   MIDDLE   AGES. 

origin.  It  grew  up  by  degrees  from  practices  common  to 
all  commercial  coiiiitries,  and  extended  over  the  entire  civ- 
ilized world.  It  lias  no  arbitrary  forms  moulding  its  whole 
subsequent  growth,  and  no  connection  with  the  etlmic  or 
tribal  characteristics  of  any  people.  Its  rules  are  based 
upon  equity  and  good  faith,  and  therefore  derived  from  that 
natural  law  which  is  only  the  instinct  of  right  and  justice 
planted  in  the  human  breast. 

§  611.  It  must  not  be  supposed  that  the  mercantile  law 
in  England  and  America  is  any  code  or  department  by  it- 
self, separated  from  the  rest  of  the  national  jurisprudence  ; 
on  the  contrary,  it  is  an  integral  part  of  the  whole  system, 
intimately  connected  with  it  by  dependent  relations  and 
common  principles.  The  development  of  this  branch  of  our 
municipal  law  affords  one  of  the  most  striking  and  instruct- 
ive examples  of  the  creative  functions  of  the  courts,  for  to 
them,  with  some  assistance  and  modifications  afforded  by 
statutes,  is  due  the  existence  of  the  whole  as  a  portion  of  our 
positive  legislation.  That  mercantile  customs,  or  usages 
among  merchants,  existed  in  England  prior  to  their  recogni- 
tion and  adoption  by  the  judges,  is  true,  and  that  business 
men  governed  their  transactions  by  these  customs  is  equally 
true.  But  as  commerce  and  trade  increased  in  importance, 
it  became  necessary  for  the  courts  to  consider  the  questions 
involved  in  these  mercantile  relations,  and  to  investigate 
the  usages  of  mercantile  men ;  and  it  was  only  when  this 
had  been  done,  and  these  usages  had  been  recognized, 
adopted,  and  enforced  by  the  judiciary,  that  they  passed 
into  the  domain  of  actual  law,  having  force  and  efficacy 
throughout  the  kingdom.  The  courts  at  the  outset  were  re- 
luctant to  assume  and  act  under  this  power,  and  their  prog- 
ress was  slow,  but  the  result  has  been  final  and  complete,  so 
that  the  system  of  regulations  styled  the  Law  Merchant,  is 
as  much  a  part  of  the  general  law  of  the  land,  as  that  which 
relates  to  real  property  or  to  2)ersonal  rights. 

§  612.  The  department  of  mercantile  law  in  our  own 


ANCIENT   MARimiE   CITIES.  353 

and  all  other  commercial  countries,  includes  a  large  number 
of  most  important  subjects,  as  it  embraces  among  otliers 
those  relating  to  shipping,  and  the  navigation  of  the  ocean, 
to  mercantile  paper,  or  bills  of  exchange  and  promissory- 
notes,  and  other  contracts  which  have  the  peculiar  charac- 
ter of  negotiability,  to  the  contract  of  sale,  to  partnership, 
to  agency,  to  bailment,  and  to  insurance. 

§  613.  The  fundamental  principles,  and  many  of  the 
special  rules,  of  some  of  these  branches  of  the  law  merchant, 
are  di-awn  in  whole  or  in  part  from  the  Roman  jurispru- 
dence, although  great  additions  and  modifications  have  been 
made,  as  commerce  and  trade  have  increased  to  an  extent 
unknown  in  the  Roman  empire.  Other  portions,  and  espe- 
cially those  relating  to  shipping  and  navigation,  and  to  ne- 
gotiable paper,  took  their  origin  at  a  time  subsequent  to  the 
completion  of  the  Roman  law  in  the  codes  of  Justinian,  or 
from  a  source  independent  of  that  system,  although  in  the 
development  of  their  special  rales  the  influence  of  Roman 
legislation  has  been  strongly  felt. 

§  614.  In  the  preceding  chapters  upon  the  feudal  system 
and  upon  the  Roman  law,  we  have  seen  that  while  the  bar- 
barian conquest  swept  over  the  whole  of  western  Europe, 
subverting  most  of  the  old  ci^^lization,  and  erecting  upon 
its  ruins  the  massive  and  severe  structure  of  feudalism, 
which,  in  its  essential  principles,  was  antagonistic  to  all 
commerce  and  intercommunication,  there  were  still  left 
scattered  through  the  ancient  provinces  and  districts  of  the 
empii'e,  some  important  cities  which  preserved  much  of 
their  old  municipal  institutions,  and  which,  in  connection 
with  other  towns  of  a  later  growth,  became  in  time  the 
nuclei  of  a  new  life  and  spirit  destructive  of  the  feudal  pol- 
icv.  It  is  not  within  the  design  and  scope  of  this  work  to 
trace  the  history  of  these  cities.  It  is  sufficient  to  say  that 
during  the  11th,  12th,  and  subsequent  centuries,  many  of 
them  became  the  centres  of  an  extensive  commerce,  and 
grew  to  be  independent  and  flourishing  republics,  rich  in 
23 


354  THE   MAKITIME   CODES   OF   TUE   MIDDLE   AGES. 

material  wealth,  ai.d  the  homes  of  art,  literature,  and  refine- 
ment. On  the  shores  of  the  Mediterranean  were  the  cities 
of  Amalphi,  Venice,  Pisa,  Genoa,  Marseilles,  Barcelona, 
and  many  others,  whose  commerce  reached  as  far  as  the 
navigation  of  the  times  would  permit,  and  afforded  them 
that  wealth  which  gave  power,  influence,  and  culture,  but 
which  at  last  brought  destruction  upon  them.  On  the 
shores  and  tributaries  of  the  Baltic  Sea,  the  German  and 
the  Atlantic  oceans,  were  the  cities  of  Wisbuy,  Lubec, 
Hamburg,  Bremen,  Ghent,  Cologne,  which  became  the 
seats  of  an  extensive  trade  with  England,  and  with  the  in- 
terior and  south  of  Europe. 

§  615.  A  commerce  so  extensive,  unprovided  for  as  it 
was  by  an}"  of  the  existing  systems  of  law  of  the  Em*opean 
states,  must  create  for  itself  customs  which  would  at  first 
serve  as  guides  to  merchants  and  mariners ;  and  these  cus- 
toms, through  some  process  of  legislation,  must  finally  be 
transformed  into  the  condition  of  positive  law  in  the  several 
states  and  counti'ies  where  trade  was  flourishing  and  im- 
jiortant.  It  was  in  this  manner  that  the  maritime  codes  of 
the  middle  ages  grew  up.  The  same  had  been  done  previ- 
ous to  the  downfall  of  the  Koman  empire.  The  Rhodians, 
who  were  distinguished  for  the  extent  of  their  commerce, 
had  promulgated  a  distinctive  code  of  sea  laws,  which  at- 
tained a  position  of  authority  along  the  shores  of  the  Medi- 
cerranean.  It  was  referred  to  in  some  of  the  Roman  impe- 
rial constitutions  as  having  binding  force,  and  although  as 
a  whole  it  has  been  lost,  some  portions  are  preserved  in  the 
pandects  of  Justinian. 

§  616.  The  law  of  shipping  and  navigation  was,  how- 
ever, but  little  developed  among  the  Romans,  and  we  must 
look  to  these  leading  cities  of  the  middle  ages  for  the  com- 
mencement of  that  growth  which  has  steadily  continued  to 
the  present  day.  The  earliest  of  these  cities  or  states  which 
collected  the  sea  customs  into  a  definite  form  of  actual  legis- 
lation, was  the  republic  of  Amalphi ;  but  its  prosperity  as 


THE   LAWS    OF   OLEEON.  355 

a  trading  towu,  and  its  independence  as  a  state,  were  de- 
stroyed about  the  middle  of  the  twelfth  century,  and  its  le- 
gislation was  displaced  by  the  more  extended  and  widely 
adopted  code  which  soon  followed. 

§  617.  The  commercial  usages  of  the  various  trading 
cities  on  the*Mediterranean  Sea,  resembling  each  other  from 
the  very  necessity  of  the  case,  were  collected  into  a  written 
code  about  the  middle  of  the  thirteenth  century,  and  called 
11  Consulato  del  Mare.  The  immediate  origin  of  this  cele- 
brated compilation  is  involved  in  much  obscurity.  Some 
writers  have  ascribed  it  to  the  city  of  Barcelona,  while 
others  have  claimed  the  city  of  Pisa,  and  still  others, 
Yenice,  as  its  birthplace.  It  is  probable,  however,  that 
it  was  the  accumulation  of  the  local  customs  and  legis- 
lation of  several  towns,  gradually  made  through  a  consider- 
able lapse  of  time,  but  finally  systematized  and  promulgated 
in  its  present  form,  either  at  Pisa  or  Barcelona.  It  was  cer- 
tainly adopted  by  France  and  the  Italian  republics,  and 
attained  the  character  of  law  in  the  countries  bordering 
on  the  Mediterranean  Sea.  This  collection  contains  regula- 
tions for  the  government  of  trading  vessels  in  time  of  peace, 
and  of  neutral  and  belligerent  vessels  in  time  of  war.  It 
has  exerted  a  very  powei-ful  influence  on  the  whole  mari- 
time legislation  which  has  succeeded  it,  and,  in  fact,  that 
law  in  all  European  countries  is  confessedly  based  upon  it, 
and  is,  in  general,  conformable  with  its  provisions. 

§  618.  The  commerce  of  the  cities  bordering  on  the 
northern  seas,  carried  on  as  it  was  for  a  while  in  great  part 
independently  of  the  trade  of  the  south,  gave  rise  to  cus- 
toms and  usages  among  the  merchants  of  those  regions, 
which,  by  a  like  necessity,  were  at  length  reduced  to  a  posi- 
tive form,  and  promulgated  in  written  codes  or  collections. 
The  earliest  of  these  compilations  is  known  as  the  Laws  of 
Oleron,  and  has  been  ascribed  to  a  French,  and  to  an  Eng- 
lish origin,  but  is  now  universally  attributed  to  the  French. 
The  small  island  of  Oleron  on  the  northern  coast  of  France 


356  THE   MAKirniE   CODES   OF   THE   MIDDLE   AGES. 

possessed  a  flourishing  commerce,  and  it  was  liere  that  this 
code  was  fii'st  published,  and  was  thence  soon  introduced 
into  England  by  Richard  I.  It  had  a  general  agreement 
with  the  Consulato  del  Mare^  was  received  as  common  law 
in  France,  attained  nearly  the  same  authority  in  England, 
and  was  soon  after  adopted  in  Spain.  It  was  made  the  ba- 
sis of  subsequent  collections  and  codes,  and  forms  another 
of  the  foundation  stones  of  the  whole  structure  of  modern 
maritime  law.  It  treats  of  the  duties  of  masters  and  sea- 
men of  ships,  of  the  rights  and  duties  of  owners,  of  partial 
and  total  losses  by  perils  of  the  sea,  and  of  most  or  all  of 
the  important  topics  which  are  within  the  scope  of  the  more 
detailed  legislation  of  the  present  day.  Although  as  a  code 
it  has  no  force  in  England  and  America,  any  more  than  the 
compilations  of  Justinian,  yet  its  rules  have  been  incorpo- 
rated by  the  courts  into  our  own  law,  and  it  is  even  now 
referred  to  and  cited  by  the  j  iidges  in  illustration  or  explan- 
ation of  their  decisions. 

§  619.  Another  compilation  of  sea  laws  was  made  about 
the  year  1290,  at  the  city  of  Wisbuy  on  the  Baltic,  and  is 
known  as  the  laws  of  Wisbuy.  This  city  was  a  free  repub- 
lic, and  was  distinguished  for  its  wealth  and  luxury,  for  the 
splendor  of  its  buildings,  and  the  sumptuous  living  of  its 
leading  merchants.  These  laws  bear  a  striking  resemblance 
to  those  of  Oleron,  and  some  portions  seem  to  have  been 
transferred  directly  from  the  one  code  to  the  other. 

§  620.  A  third  of  the  ancient  maritime  codes  of  northern 
Europe  was  that  promulgated  by  the  cities  of  the  Hanseatic 
confederation  in  1614.  In  this  confederacy  w-ere  included 
Lubec,  Bremen,  Hamburg,  and  all  the  principal  cities  on 
the  Baltic,  and  navigable  rivers  of  Germany,  united  togeth- 
er for  mutual  protection  and  for  tJie  furtherance  of  their 
commercial  interests.  Their  compilation,  which,  of  course, 
had  the  efiect  of  positive  law  among  them,  was  mainly 
copied  from  the  laws  of  Oleron, 

§  621.  These  several  codes  form  the  basis  of  that  portion 


8IMILAK   CODES   NOT   NEEDED   IN   ENGLAND.  357 

of  the  modern  law  mercliant,  which  particularly  refers  to 
shipping,  to  the  navigation  of  the  ocean,  and  to  purely  ma- 
ritime contracts.  It  is  not  my  purpose  to  give  the  substance 
of  this  early  legislation,  for  as  it  constitutes  a  considerable 
portion  of  our  law  of  the  present  day,  it  will  more  properly 
be  described  in  the  subsequent  part  of  this  work.  It  must 
be  noticed  that  while  the  commerce  of  England  was,  at  a 
very  early  period,  so  extensive  as  to  reach  to  the  Baltic,  the 
German  Ocean,  and  even  to  the  Mediterranean  Sea,  al- 
though it  had  not  attained  the  magnitude  of  that  of  the  Ital- 
ian republics  during  the  height  of  their  splendor  and  opu- 
lence, yet  that  country  has  furnished  no  special  collection 
of  sea  laws.  But  we  have  already  learned  enough  of  the 
genius  for  legislation  of  our  English  ancestors,  to  perceive 
that  it  was  not  in  accordance  with  their  methods  to  collect 
and  compile  any  such  distinctive  system.  Their  common 
law,  never  stationary,  had  the  power  to  avail  itself  of  the 
wisdom  and  experience  of  all  other  countries,  and  to  draw 
in  the  foreign  material  and  incorporate  it  with  their  own. 
Thus,  while  our  law  is  distinctively  English  and  American 
in  its  form,  and  has  force  as  law  only  because  it  has  been 
called  into  being  in  some  of  the  methods  prescribed  by  our 
institutions,  yet  for  the  origin  in  history  of  this  particular 
department,  we  must  look  to  the  rich  Italian  republics  of 
the  twelfth  and  thirteenth  centuries,  to  the  merchants  of 
Oleron  on  the  coast  of  France,  and  to  the  enlightened  citi- 
zens of  Wisbuy  on  the  Baltic. 


PART  III. 

OUTLINES    OF    AMERICAN    MUNICIPAL    LAW. 


CHAFTEE  I. 


PERSONS  AND  PEESONAL  EIGHTS. 


§  622.  In  following  out  my  plan,  and  giving  an  outline 
of  the  municipal  law,  of  which  the  principal  features  are 
the  same  in  England  and  the  United  States,  I  shall  treat,  in 
the  first  place,  of  persons,  and  of  those  rights  belonging  to 
them,  which  are  the  objects  of  legal  supervision.  The  na- 
tional law  regards  and  treats  persons  only  as  individuals 
foiming  a  part  of  the  state ;  it  pays  no  attention  whatever 
to  those  natural  rights  which  theorists  may  consider  as  inci- 
dent to  a  condition  prior  to  an  organized  political  society. 
It  sees  the  whole  nation  as  a  body  politic,  and  the  separate 
individuals  composing  it,  and  awards  to  the  latter  all  those 
rights  which  are  deemed  compatible  with  the  safety  and 
prosperity  of  the  whole.  How  general  or  how  limited  will 
be  this  concession  of  privileges  to  the  individual,  will  de- 
pend in  great  measure  upon  the  political  organization,  upon 
the  ideas  of  social  order  which  underlie  the  government. 
In  our  own  country  the  theory  is,  that  all  power  of  govern- 
ment as  a  practical  institution,  is  derived  from  the  people 
themselves.  Tliis  theory  does  not  necessarily  deny  that  the 
ultimate  abstract  right  to  govern  at  all,  has  its  source  in  the 


EIGHTS   OF    PERSONS    GENEBAILT.  359 

Divine  Governor  of  the  Universe.  Understood  rightly,  it 
only  assumes  that  the  people  have  the  practical  power  to 
determine  the  form  and  limitations  of  the  government,  and 
the  choice  of  rulers.  As  a  natural  consequence,  the  indi- 
vidual is  regarded  as  having  surrendered  a  part  of  his  purely 
natural  rights  for  the  general  welfare ;  and  the  amount  of 
this  concession  is  as  small  as  possible,  while  the  sum  of 
those  retained  by  him,  and  recognized  and  enforced  by  the 
municipal  law,  is  a  maximum. 

§  623.  At  the  same  time  that  our  law  admits  and  sus- 
tains a  large  class  of  personal  rights,  another  class  it  passes 
by  in  silence.  It  does  not  interfere  with  the  individual's 
rights  and  duties  as  a  mere  moral  agent,  as  a  creature  of 
God,  bound  to  obey  the  divine  law  in  respect  to  the  Crea- 
tor, and  in  respect  to  other  individuals  united  with  him 
in  the  common  brotherhood  of  mankind.  It  is  only  when 
an  act  has  been  done  which  affects  a  person's  condition  as 
a  member  of  the  state,  that  the  municipal  law  interferes. 

§  624.  The  department  of  the  law  which  we  are  consid- 
ering, embraces. 

Those  rules  which  relate  to  the  rights  inherent  in  per- 
sons generally,  as  members  of  the  state,  or  under  its  protec- 
tion; and. 

Those  which  define  the  condition  and  status  of  certain 
particular  classes  of  persons,  and  their  peculiar  rights  and 
duties. 

Section  First. 

OF   PEKSONS   GENEEALLT,  AND   THE   EIGHTS   AND    DUTIES 
BELONGING   TO   THEM. 

§  625.  In  its  treatment  of  persons  and  personal  rights 
generally,  the  state  recognizes  three  classes. 

The  first  class  includes  all  free  persons  within  the  limits 
of  the  national  territory,  of  every  age  and  sex,  whether  na- 
tive or  foreign  born,  and  whether  permanent  resi(^ents  or 


360  PERSONS    AND   PERSONAL   RIGHTS. 

temporary  sojourners.  In  this  class  are  comprehended  all 
others,  and  to  it  belong  certain  absolute  rights,  which  the 
law  recognizes  and  enforces. 

The  second  class  embraces  citizens  of  the  United  States, 
or  of  a  particular  state,  whether  foreign  or  native  born,  of 
every  age  and  sex. 

The  third  class  includes  those  citizens  to  whom  the  po- 
litical power  of  the  United  States,  or  of  a  particular  State,  is 
directly  confided,  who  may  exercise  the  right  of  sufirage, 
and  hold  civil  offices.  These  are,  in  most  of  the  States,  the 
male  white  citizens,  of  the  age  of  twenty-one  years. 


OP  THE  ABSOLUTE  EIGHTS  WHICH  THE  LAW  EECOGNIZES  AS  BELONGrNG 
TO   ALL   PERSOKS   OP   THE   FIKST  CLASS. 

§  626.  These  absolute  rights  may  be  comprehensively 
expressed,  as  the  right  of  personal  security,  the  right  of 
personal  liberty,  the  right  to  acquire  and  enjoy  private  prop- 
erty, and  the  right  of  religious  belief  and  worship. 

§  627.  The  origin  of  these  immunities  we  must  seek  in 
English  history.  Sprung  from  the  tribal  customs  of  the 
Germanic  invaders,  they  have,  from  time  to  time,  been 
asserted,  fought  for,  conceded,  and  solemnly  established. 
Their  most  important  statutory  or  constitutional  safeguard  is 
found  in  Magna  Charta.  This  celebrated  instrument  was 
extorted  by  his  barons  from  King  John  in  the  jeav  1215, 
and  has  been  ratified  more  than  thirty  times  by  succeeding 
monarchs.  Magna  Charta. contains  many  special  provisions 
touching  the  clergy  and  the  nobility,  which  it  is  not  neces- 
eary  to  enumerate.  Its  great  constitutional  features,  which 
reach  to  our  own  times,  and  are  the  basis  of  personal  and 
political  security  and  freedom,  are  the  following :  that  no  aid 
or  scutage  (which  answers  to  the  modern  tax)  should  be 
assessed  except  in  three  specified  cases,  without  the  authority 
of  a  great  council  summoned  by  the  king  ;  that  merchants 


MAGNA    CHART  A.  361 

should  be  allowed  to  transact  all  business,  without  being 
exposed  to  any  arbitrary  tolls  and  impositions ;  and  that  all 
freemen  should  be  allowed  to  go  out  of  the  kingdom  and 
return  to  it  at  pleasure  ;  that  the  goods  of  every  person 
should  be  disposed  of  according  to  his  will ;  if  he  die  intes- 
tate, that  his  heirs  should  succeed  to  them  ;  that  no  officer  of 
the  crown  should  take  any  horses,  carts,  or  wood  without  the 
consent  of  the  owner  ;  that  the  king's  court  of  justice  should 
be  stationary,  and  should  be  open  to  every  one,  and  justice 
should  no  longer  be  sold,  or  refused,  or  delayed ;  that  no 
person  should  be  put  on  trial  from  rumor  or  suspicion  alone, 
but  upon  the  evidence  of  lawful  witnesses  ;  that  no  freeman 
was  to  be  taken,  or  imprisoned,  or  deprived  of  his  property, 
or  outlawed,  or  banished,  or  anyways  hurt  or  injured,  unless 
by  the  lawful  judgment  of  his  peers,  or  by  the  law  of  the 
land ;  ever}^  freeman  was  to  be  fined  in  proportion  to  his 
fault,  and  no  fine  was  to  be  levied  on  him  to  his  utter 
ruin. 

The  original  text  of  the  most  important  provision  is  as 
follows  :  Nullus  liber  Jiomo  cwpiatur,  vel  imprisonetur^  aut 
dissaismtur,  aut  utlagekir,  aut  aliquo  modo  desfruatur  y  neo 
super  eum  ihimus,  neo  super  eum  mittemus,  nisi  jper  legale 
judicium  parium  suorum,  vel  per  legem  terrce. 

§  628.  It  is  worthy  of  notice  that  the  provisions  of  the 
Great  Charter  are  not  expressed  in  those  general  terms  which 
are  common  to  modern  constitutional  legislation.  Tet,  spe- 
cial as  they  are,  they  have  been  invariably  considered  as  ex- 
pressive of  comprehensive  limitations  upon  the  government, 
and  declaratory  of  comprehensive  rights  of  the  people.  The 
clause  relating  to  the  assessment  of  an  escuage,  has  been 
definitely  settled,  with  much  contest,  however,  as  determin- 
ing that  the  parliamentary  representatives  of  the  nation  hold 
a  complete  control  over  the  subject  of  taxation.  Indeed, 
this  instrument  has  been  fruitful  of  principles ;  at  each 
great  national  emergency  it  has  spoken  in  no  roicertain 
voice.    Sir  James  Mackintosh  says  of  it :  "  It  was  a  peculiai 


362  PEESONS   AND   PEESONAL   RIGHTS. 

advantage  that  the  consequences  of  its  principles  were,  if  we 
may  so  speak,  only  discovered  gradually  and  slowly.  It 
gave  out  on  each  occasion  only  so  much  of  the  sph-it  of  lib- 
erty and  reformation  as  the  circumstances  of  succeeding 
generations  required,  and  as  their  character  would  safely 
bear.  For  almost  five  centuries  it  was  appealed  to  as  the 
decisive  authority  on  behalf  of  the  people,  though  common- 
ly, so  far  only  as  the  necessities  of  each  case  demanded.  Its 
effect  in  these  contests  was  not  altogether  unlike  the  grand 
process  by  which  nature  employs  snows  and  frosts  to  cover 
her  delicate  germs,  and  to  hinder  them  from  rising  above 
the  earth  till  the  atmosphere  has  acquired  the  mild  and 
equal  temperature  which  ensures  them  against  blights.  On 
the  English  nation,  undoubtedly,  the  charter  has  contribu- 
ted to  bestow  the  union  of  establishment  with  improvement. 
To  all  mankind  it  set  the  fii'st  example  of  the  progress  of  a 
great  people  for  centuries,  in  blending  their  tumultuary 
democracy  and  hanghty  nobility  with  a  fluctuating  and 
vaguely  limited  monarch}^,  so  as  at  length  to  form  from 
these  discordant  materials  the  only  form  of  free  government 
which  expeiience  has  shown  to  be  reconcilable  with  widely 
extended  dominions.  "Whoever,  in  any  future  age  or  yet 
unborn  nation,  may  admire  the  felicity  of  the  expedient 
which  converted  the  power  of  taxation  into  the  shield  of 
liberty,  by  which  discretionary  and  secret  imprisonment 
was  rendered  impracticable,  and  portions  of  the  people 
were  trained  to  exercise  a  larger  share  of  judicial  power 
than  ever  was  allotted  to  them  in  any  other  civilized  state, 
in  such  a  manner  as  to  secure,  instead  of  endangering  pub- 
lic tranquillity  ;  whoever  exults  at  tiie  spectacle  of  enlight- 
ened and  independent  assemblies  which,  under  the  eye  of  a 
well-informed  nation,  discuss  and  determine  the  laws  and 
policy  likely  to  make  communities  great  and  happy  ;  who- 
ever is  capable  of  comprehending  all  the  effects  of  such  in- 
stitutions, with  all  their  possible  improvements,  upon  the 
mind  and  genius  of  a  people,  is  sacredly  bound  to  speak 


PETITION   OF   KIGHT — HABEAS   CORPUS   ACT.  363 

witli  reverential  gratitude  of  the  authors  of  the  great  char- 
ter. To  have  produced  it,  to  have  preserved  it,  to  have 
matured  it,  constitute  the  immortal  claim  of  England  upon 
the  esteem  of  mankind.  Her  Bacons  and  Shakspeares,  her 
Miltons  and  Newtons,  with  all  the  truth  which  they  have 
revealed,  and  all  the  generous  virtues  which  they  have  in- 
spired, are  of  inferior  value  when  compared  with  the  subjec- 
tion of  men  and  their  rulers  to  the  principles  of  justice,  if, 
indeed,  it  be  not  more  true  that  these  mighty  spirits  could 
not  have  been  formed  except  under  equal  laws,  nor  roused 
to  full  activity,  without  the  influence  of  that  spirit  which 
the  great  Charter  breathed  over  their  forefathers." 

§  629.  Tlie  Petition  of  Right  passed  by  Parliament  in  the 
year  1628,  in  the  reign  of  Charles  I.,  is  another  of  the  great 
constitutional  muniments  of  the  English  people.  In  this 
statute,  forced  loans  from  the  people,  taxes  without  consent 
of  Parliament,  arbitrary  arrests  and  imprisonments,  the 
billeting  of  soldiers  on  private  citizens,  and  trials  and  con- 
demnations by  martial  law,  were  declared  illegal,  and  con- 
demned as  subversive  of  the  rights  of  the  people  and  the 
fundamental  law  of  the  kingdom. 

§  630.  A  statute  passed  in  the  reign  of  Charles  II.  en- 
larged, or  rather  made  effectual,  the  provisions  of  Magna 
Charta  and  the  Petition  of  Eight  which  protected  jDcrsonal 
liberty,  by  securing  a  certain  and  speedy  method  of  enfor- 
cing them,  and  a  remedy  against  their  violation.  This  is 
known  as  the  Haheas  Carpus  Act.  It  did  not  invent  the 
"Writ  of  Habeas  Corpus;  that  form  of  judicial  proceeding 
had  been  known  for  centuries ;  but  it  provided  that  no 
judge,  under  severe  penalties,  must  refuse  this  writ  to  any 
person  in  custody  who  applied  for  it,  in  order  that  the  cause 
of  the  confinement  might  be  summarily  inquired  into,  and, 
if  found  to  be  illegal,  that  the  prisoner  might  be  discharged. 
The  importance  of  this  statute,  and  of  the  remedy  wliich  it 
made  absolutely  certain,  cannot  be  overestimated.  With- 
out it,  the  constitutional  safeguards  contained  in  the  Greal 


364-  PERSONS    AND   PERSONAL    RIGHTS. 

Charter  and  the  Petition  of  Eight  were  onlj  theoretical 
declarations ;  with  it  they  can  be  speedily  and  effectively 
enforced. 

§  631.  The  Bill  of  Eights  and  Act  of  Settlement  set  forth 
by  the  Convention  and  Parliament  at  the  commencement 
of  the  reign  of  William  III.,  reassert  the  fundamental  pro- 
visions of  these  former  statutes,  with  some  additional  detail, 
and  form  the  close  of  this  series  of  great  constitutional  en- 
actments, upon  which  the  liberty  and  security  of  the  English 
subject  are  based. 

§  632.  The  principles  thus  repeated  by  solemn  affirma 
tions  of  the  legislature  and  the  king  are  a  part  of  the  Com- 
mon Law  of  England,  and  as  such  have  been  inherited  by  us. 
Indeed,  the  most  important  clauses  of  Magna  Charta,  those 
which  protect  private  property,  and  secure  personal  liberty 
against  aggression,  were  rather  the  residuum  of  Saxon  insti- 
tutions preserved  in  the  memories  of  the  people,  than  new 
statements  of  individual  rights. 

§  633.  The  founders  of  our  national  Government,  after 
having  prosecuted  a  long  war  to  maintain  what  they 
claimed  to  be  their  rights  under  the  English  constitution, 
were  naturally  zealous  in  preserving  those  rights  in  their 
own  organic  law.  The  Constitution  of  the  United  States  is 
minute  and  specific  in  its  safeguards  against  open  or  covert 
infringement  of  the  personal  rights  of  the  people.  Its  provis- 
ions, which  directly  refer  to  this  subject,  are  the  following  : 

"  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it."  "  No  bill  of  attainder  or 
ex  jpost  facto  law  shall  be  passed."  "  No  capitation  or 
other  direct  tax  shall  be  laid  unless  in  proportion  to  the 
census  or  enumeration  directed  to  be  taken."  "  No  State 
shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  im- 
pairing the  obligation  of  contracts."  "  Congress  shall  make 
no  law  respecting  the. establishment  of  religion,  or  prohibit- 
ing the  free  exercise  thereof ;  or  abridging  the  freedom  of 


CONSTITUTIONAL    PROVISIONS.  365 

speech  or  of  the  press,  or  the  right  of  the  people  peaceably 
to  assemble  and  to  petition  the  Government  for  a  redress  of 
grievances."  "  The  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  abridged."  "  No  soldier  shall,  in  time  of 
peace,  be  quartered  in  any  house  without  the  consent  of  the 
owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed 
by  law."  "  The  right  of  people  to  be  secure  in  their  per- 
sons, houses,  papers,  and  effects  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no  warrant 
shall  issue  but  u]3on  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched  and  the  persons  or  things  to  be  seized."  "  No 
person  shall  be  held  to  answer. for  a  capital  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval 
forces  or  in  the  militia  when  in  actual  service  in  time  of  war 
or  public  danger ;  nor  shall  any  person  be  subject  for  the 
same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ; 
nor  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself ;  nor  be  deprived  of  life,  liberty,  or  proper- 
ty, without  due  process  of  law  ;  nor  shall  private  property 
be  taken  for  public  use  without  just  compensation."  "  In 
all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial  by  an  impartial  jury  of  the  State 
or  district  wherein  the  crime  shall  have  been  committed, 
and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion ;  to  be  confronted  with  the  witnesses  against  him  ;  to 
have  compulsory  process  for  obtaining  witnesses  in  his  fa- 
vor, and  to  have  the  assistance  of  counsel  for  his  defence." 
"  In  suits  at  common  law,  when  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved  ;  and  no  fact  tried  by  a  jury  shall  be  otherwise 
examined  in  any  com't  of  the  United  States  than  according 
to  the  rules  of  the  Common  Law,"  "  Excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed,  nor  cruel  or 
unusual  punishments  inflicted."     "  The  enumeration  in  the 


366  PERSONS    AND   PERSONAL    RIGHTS. 

Constitution  of  certain  rights  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people." 

Most  or  all  of  the  State  constitutions  also  contain  Bills  of 
Eights  similar  to  the  foregoing.  Having  thus  traced  the 
history  of  these  j)ersonal  rights  in  the  English  law,  and 
quoted  the  constitutional  provisions  of  England  and  the 
United  States  for  their  protection,  I  will  now  proceed  to 
describe  them  more  in  detail. 


1.  The  Right  of  Personal  Security. 
i 

§  634.  This  includes  security  of  life,  of  body  and  fimb, 
and  of  reputation. 

(1).  Security  of  Life.  The  right  to  the  full  enjoyment 
of  life  is  granted  by  the  law  of  nature,  and  no  system  of 
municipal  law  could  allow  it  to  be  taken  by  a  private  per- 
son unless  in  strongly  exceptional  cases.  But  our  own  or- 
ganic law  guards  the  life  of  an  individual  not  only  against 
the  attacks  of  those  not  clothed  with  legal  authority,  but 
against  the  unwarrantable  power  of  the  state  itself.  The 
comer-stone  of  this  muniment  is  the  provision  that  no  per- 
son shall  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law,  and  this  is  further  defined  by  the  Consti- 
tution and  the  courts  to  consist  in  the  following  necessary 
elements  :  a  presentment  or  indictment  by  a  gi'and  jury  ;  an 
arrest  by  virtue  of  a  warrant  issued  upon  oath,  and  contain- 
ing a  description  of  the  crime  charged ;  information  of  the 
nature  and  causes  of  the  accusation  ;  a  speedy  trial  before 
an  impartial  jury ;  a  pu!  lie  examination  of  opposing  wit- 
nesses ;  the  forced  attendance  of  the  prisoner's  own  wit- 
nesses ;  the  privilege  of  his  own  silence  in  respect  to  the 
cliarge,  and  freedom  from  a  second  trial  after  a  conviction 
or  acquittal  by  the  first.  Tlie  last  provision,  however,  does 
not  include  the  case  of  a  conviction  wliich  has  been  set  aside 
or  reversed  on  account  of  some  error  committed  on  the  trial ; 
tlie  criminal  is  still  liable  to  a  second  trial. 


SECUKITY   OF   LIFE.  367 

This  is  "  due  process  of  law,"  nor  can  the  United  States, 
Dor  any  particular  State,  take  away  from  these  bulwarks 
built  up  around  the  life  of  every  person,  even  when  it  is 
put  in  danger  on  account  of  some  alleged  oifence  against 
the  majesty  of  the  state  and  the  peace  of  society.  The 
words  "  law  of  the  land  "  used  in  Magna  Charta,  and  "  due 
process  of  law  "  employed  in  our  Constitution,  are  identical 
in  their  import.  They  do  not  mean  any  law  which  the  le- 
gislature may  see  fit  to  pass,  but  that  common  law  course 
of  judicial  proceeding,  known  in  England  for  centuries,  and 
recognized  and  described  by  our  organic  law,  and  sketched 
above.  Neither  a  State  legislature,  nor  the  national  Con- 
gress, can,  by  enacting  a  new  method  of  trial,  thereby  make 
it  "  the  law  of  the  land,"  or  "  due  process  of  law." 

§  635.  But  the  Constitution  has  not  been  content  with 
thus  prescribing  the  only  manner  in  which  human  life  can 
be  taken  by  the  state  ;  it  has-gone  further,  and  strengthened 
the  barrier,  by  declaring  that  neither  Congress  nor  the  State 
legislatm^es  shall  have  power  to  pass  bills  of  attainder,  or 
ex  'post  facto  laws.  Bills  of  attainder  are  virtually  legisla- 
tive trials  and  condemnations.  They  are  usui-pations  of  the 
judicial  function  by  Parliament ;  statutes  passed  without 
the  formalities  of  witnesses,  or  evidence,  or  defence,  by 
which  an  individual  may  be  condemned  unheard  ;  and  are 
of  course  utterly  incompatible  with  the  liberty  of  the  peo- 
ple. Ex  post  facto  laws  are  those  which  render  persons 
guilty  and  liable  to  be  punished  for  acts  which,  at  the  time 
of  their  commission,  were  not  criminal. 

§  636.  Human  life  is  protected  not  only  against  public 
encroachments,  but  against  private  violence.  This  principle 
includes  the  right  of  self-defence.  The  individual  is  not  left, 
for  his  only  safeguard,  to  the  fear  of  punishment  which  may 
deter  the  assailant ;  the  law  clothes  him  with  the  right  to 
repel  force  by  force,  and  to  preserve  his  own,  even  at  the 
expense  of  the  other's  life.  It  is  not  even  necessary  that 
one's  life  should  be  in  actual  danger  to  justify  a  homicide  in 


368  PERSONS    AND   PERSONAL   RIGHTS. 

protecting  it ;  the  law  only  demands  that  there  should  be 
reasonable  ground  to  apprehend  a  fatal  result. 

§  637.  The  Common  Law  did  not  give  any  civil  remedy 
to  the  surviving  representatives  of  a  person  killed  through 
carelessness  or  design,  against  the  aggressor.  By  the  tech- 
nical rules  of  the  English  law  the  right  of  redress  for  vio- 
lence done  to  the  person  belonged  alone  to  the  individual 
injured,  and  ended  with  his  death.  Late  statutes,  however 
in  some  of  the  States,  have  changed  this  rule,  and  given  to 
the  widow  and  children  a  right  of  action  for  compensation 
in  pecuniary  damages  against  the  person  who  has  taken  the 
life  of  a  husband  or  father. 

§  638.  (2).  Security  of  Body  and  Lhiib.  The  restraints 
upon  the  power  of  Government  to  take  life,  apply  with 
equal  force  to  any  attempts  to  injure  the  body.  But  this  is 
a  danger  not  much  to  be  appreiiended  in  any  civilized  state 
in  modern  times.  The  use  of  tcrture,  or  maiming,  or  disfig- 
urement, as  a  punishment,  is  so  contrary  to  our  ideas,  that 
uo  law  could  be  passed  which  would  resort  to  them  as 
punitive  measures.  The  whipping-post,  the  stocks,  the 
pillory,  the  branding  iron,  the  rack,  belong  to  the  past ; 
they  are  relics  of  barbarism.  Still,  for  greater  security,  the 
fundamental  law  provides  that  cruel  or  unusual  punish- 
ments shall  not  be  inflicted. 

§  639.  But  we  are  all  exposed  to  the  violence  of  our  fel- 
lows, and  against  this  the  law  interposes  its  preventive  and 
its  compensatory  remedies.  The  loss  of  a  limb,  or  of  those 
members  which  are  useful  in  fighting,  is  denominated  may- 
hem, and  the  right  of  defence  against  such  an  attempted 
outrage  is  allowed  to  the  extent  of  taking  the  life  of  the  as- 
sailant. Thus  tlie  municipal  law,  in  respect  to  self-protec- 
tion of  life  or  limb,  throws  the  individual  back  upon  the 
simple  law  of  nature,  and  permits  him  to  be  judge  and  exe- 
cutioner in  his  own  case. 

§  640.  But  if  violence  has  been  successful,  and  limbs  in- 
jured, or  the  body  otherwise  unwarrantably  assailed,  or 


BECUKITT   OF   CHARACTEE.  369 

even  threatened,  the  mimicii^al  law  gives  the  sufferer  a  com- 
pensatory remedy  against  the  aggressor,  by  means  of  an  ac- 
tion to  recover  damages  for  the  pain  and  injury  to  which 
he  has  been  subjected.  When  this  injury  was  direct,  in- 
tentional, and  effected  by  force,  the  ancient  appropriate 
form  of  action  was  that  described  in  Chapter  II.  of  Part 
First,  as  Trespass,  which  was  one  of  the  very  oldest  known 
to  the  English  law.  But  when  the  harm  was  "  cousequen- 
tional,"  that  is,  done  not  through  the  direct  and  intentional 
application  of  force  by  the  assailant,  but  rather  accom- 
plished as  a  consequence  of  his  negligence,  or  of  his  being 
engaged  in  some  other  illegal  act,  the  appropriate  form  of 
action  was  called  trespass  on  the  case.  In  both  instances 
the  compensation  consists  entirely  of  pecuniary  damages, 
and  the  amount  is  to  be  fixed  by  the  jury  according  to  the 
circumstances  of  each  particular  case. 

§  641  (3).  Security  of  Character.  The  law  of  England 
and  of  the  American  States,  and  probably  of  all  other  civil- 
ized countries,  furnishes  a  protection  for  one's  good  name 
and  reputation,  by  punishing  in  some  manner  those  who 
cast  aspersions  on  private  character.  While  freedom  of 
speech  and  of  the  press  is  guaranteed  in  our  very  constitu- 
tions, the  abuse  of  this  privilege  is  severely  and  justly  re- 
pressed. A  man's  good  name,  reputation,  and  character, 
may  be  attacked  by  oral  speech,  and  by  written,  printed, 
or  pictured  words  or  representations.  Following  this 
natm'al  division,  the  law  distinguishes  two  species  of  the 
offence,  slander,  and  libel.  Slander  is  the  verbal  attack  on 
private  character ;  in  libel,  the  assault  is  more  deliberate 
and  formal  and  injurious,  as  it  is  committed  through  the 
agency  of  the  press.  As  there  is  thus  a  difference  in  moral 
guilt  of  these  two  forais  of  the  offence,  so  the  law  establish- 
es a  distinction  in  their  legal  guilt,  or  in  their  liability  to  pun- 
ishment. The  Common  Law  of  England  and  of  our  own 
States,  defines  slander  to  consist  in  falsely  and  maliciously 
charging,  by  spoken  words,  that  a  person  has  committed 
24 


370  PERSONS   AND   PERSONAL   RIGHTS.  j 

Bome  public  offence  or  crime ;  or  that  lie  has  done  some* 
thing  in  reference  to  his  particular  trade  or  vocation,  which, 
if  true,  would  render  him  unworthy  of  employment ;  or  in 
falsely  and  malicionsly  charging  a  person  with  any  other 
thing,  when,  by  means  of  the  accusation,  the  injured  party 
has  suffered  legal  damage.  By  the  rules  of  this  law,  as  es- 
tablished by  judicial  decision,  slander  is  somewhat  restrict- 
ed. All  false,  and  even  malicious  verbal  attacks  upon  an- 
other's good  name,  do  not  fall  within  the  definition  of  slan- 
der. Those  only  do  which  produce  such  damage  as  the  law 
can  recognize  and  compute.  Accusations  which  impute 
crime  or  evil  practices  in  one's  business,  are  conclusively 
presumed,  without  any  proofs,  to  be  followed  by  such  dam- 
ages ;  in  all  other  cases  the  damage  must  be  shown  by 
proof.  Thus,  if  the  words  complained  of  charge  the  com- 
mission of  a  criminal  offence,  they  amount  to  slander,  evea 
though  the  attempt  to  injure  character  was  harmless ;  but 
if  the  words  only  describe  some  moral  deUnquency,  liowever 
great,  but  not  amounting  to  a  crime,  or  to  a  breach  of  puW 
lie  trust,  or  to  malpractice  in  business,  they  are  not  legal 
slander,  unless,  as  a  direct  consequence  of  them,  some  actual 
damage  was  sustained,  beyond  mere  shame,  and  woundedi 
feelings,  and  coldness  of  friends,  and  the  contempt  of  thd 
world.  Thus,  if  I  falsely  accuse  a  man  of  theft,  I  am  guiltyj 
of  slander,  and  liable  to  an  action ;  but  if  I  circulate  un-l 
founded  reports  prejudicial  to  a  woman's  reputation  forj 
chastity,  no  matter  how  generally  they  may  be  believed,; 
and  how  much  mental  agony  she  may  suffer,  I  am  not  guil- 
ty of  legal  slander,  so  as  to  be  liable  to  an  action  in  her  be-; 
half,  unless  she  has  sustained  some  pecuniary,  or  whatj 
amounts  to  pecuniary  damage,  as  the  natural  consequeneeii 
of  mv  falsehood  and  malice.  Instances  of  such  damage 
would  be  the  breaking  off,  or  prevention  of  marnage,  the, 
loss  of  employment,  diminution  of  wages,  and  the  like.i 
This  is  the  rule  of  the  common  law,  and  it  is  excessively! 
harsh  and  inequitable.     In  some  of  the  States  the  injustice^ 


SLANDERS    AND   LIBELS.  371 

has  been  remedied  bj  statute,  and  imputations  upon  female 
lionor,  at  least,  placed  in  the  same  rank  as  accusations  of 
crime. 

§  642.  A  slander  is  purely  a  private  injury,  and  its  rem 
edy  is  a  private  action  for  damages.  As  the  foundation  foi 
the  action  is  the  wrong  done  to  the  individual,  if  the  defend- 
ant can  show  that  his  accusation  is  true,  the  plaintiff  can- 
not recover ;  the  ground  of  complaint  would  have  been  re- 
moved ;  he  would  have  suffered  no  wrong ;  the  charge 
would  not  be  slander. 

§  643.  A  libel  is  more  comprehensive  in  its  meaning 
than  a  slander.  It  is  a  malicious  publication  expressed 
either  in  printing  or  writing,  or  by  signs  or  pictures,  tend- 
ing either  to  blacken  the  memory  of  one  dead,  or  the  reputa- 
tion of  one  alive,  and  expose  him  to  public  hatred,  contempt, 
or  ridicule.  Language  which,  uttered  verbally,  would  not 
amount  to  aslander,  when  written  or  printed  and  published, 
might  be  libellous.  The  law  has,  therefore,  been  generally 
more  careful  to  restrain  and  punish  an  abuse  of  the  freedom 
of  the  press,  than  a  license  in  the  use  of  the  tongue. 

§  644.  Libels  may,  like  slanders,  be  treated  as  mere  pri- 
vate wrongs,  when  the  remedy  is  an  action  for  damages, 
which  is  governed  by  the  same  rales  as  the  one  for  slander, 
except  that  in  no  case  is  the  plaintiff  driven  to  prove  any 
particular  damage.  The  deliberate  way  of  uttering  the  as- 
persions by  print,  and  the  chances  for  a  wide-spread  circula- 
tion of  the  falsehood,  are  considered  as  affording  a  conclu- 
sive presumption  that  a  legal  injury  has  been  inflicted.  Al- 
though theoretically  these  damages  are  considered  as  a  rec- 
ompense for  the  harm  done  to  the  plaintiff,  yet  practically 
it  is  almost  or  quite  impossible  to  separate  them  entirely 
from  the  idea  of  punishment  in  the  nature  of  fines  inflicted 
on  persons  who  have  been  guilty  of  a  wrong  only  separated 
by  a  shadowy  boundary  from  a  crime.  The  same  is  true  of 
the  damages  given  in  all  instances  when  moral  delinquency 
is  inseparably  connected  with  the  existence  of  the  legal 


372  PEKSONS    AND    PERSONAL    EIGHTS.  j 

cause  of  action,  such  as  assaults  and  batteries,  seductions,] 
and  that  large  class  of  cases  in  which  injury  is  done  to  per- ; 
son  or  property  through  negligence.  I 

§  645.  As  libels  tend  also  to  disturb  the  public  peace,  j 
the  law  raises  them  above  the  scale  of  mere  private  wrongs,  \ 
and  ranks  them  among  public  offences,  and  punishes  their  j 
authors  as  criminals.  The  English  law  was  very  severe  in  ' 
criminal  prosecutions  for  libels.  It  denied  the  libeller  the-| 
privilege  of  proving  his  charge  to  be  true,  and  deemed  the ! 
offence  against  the  general  welfare  the  same,  whether  the  I 
accusations  were  well  founded  or  false.  In  most  of  the ! 
American  States  this  ancient  mle  has  been  altered  by  stat- ; 
ute,  and  in  criminal  trials  for  libels,  as  well  as  In  private  i 
suits  for  libels  and  slanders,  the  truth  of  the  charges  may  be  j 
shown  as  a  defence.  Some  States  have  gone  so  far  as  to  | 
protect  this  right  by  a  constitutional  provision.  Late  stat-  ' 
utes  in  many  of  the  States  have  greatly  changed  the  law  in  '. 
respect  to  libels  and  slanders,  particularly  by  affording  I 
greater  facilities  to  the  defendant  to  show  that  he  was  not ' 
actuated  by  ])ositive  malice  in  uttering  or  printing  the  ! 
charges,  and  thus  to  free  himself  altogether  from  the  pen-  ' 
alty,  or  to  mitigate  its  severity ;  but  it  is  only  necessary  to  ; 
advert  to  these  alterations ;  the  general  character  of  the  j 
offence  remains  imtouched.  | 

2.     The  Eight  of  Personal  Liberty. 

§  ^^^.  By  the  English  law,  as  fundamentally  established  \ 
in  Magna  Charta,  the  Petition  of  Right,  the  habeas  coi'ptLS  I 
act,  and  the  Bill  of  Eights,  and  by  the  American  law,  as  ! 
based  on  the  Federal  and  State  constitutions,  the  personal 
liberty  of  the  individual  is  guaranteed  in  the  most  solemn 
manner  against  private  force  and  public  aggression.  J 

§  647.  (1).  Nature  of  Legal  Liberty  and  its  Gxiarantees. 
Legal  liberty  in  one  sense  is  the  untramelled  right  of  locomo-  ' 
tdon,  and  restraint  upon  it  consists  in  actual, or  constructive,  | 


EIGHT   OF    PERSONAL    LIBERTY.  373 

or  threatened  eonfinement  of  the  body.     In  another  and  ad- 
ditional sense,  as  protected  by  our  organic  law,  it  includes 
an  immunity  from  certain  acts  of  government  officials  or 
private  individuals,  which  would  not  amount  to  confine- 
ment, but  which  would  be  offensive  or  oppressive,  and  the 
privilege  of  doing  many  acts  which  are  not  embraced  in 
the  simple  idea  of  locomotion.     In  guarding  the  general 
right  of  the  individual  to  come  and  go  at  will,  which  is,  of 
course,  the  most  comprehensive  and  important,  our  own  or- 
ganic law,  as  well  as  that  of  England,  prescribes  the  only 
manner  in  which  this  privilege  may  be  abridged,  by  forbid- 
ding unreasonable  seizures  and  arbitrary  arrests,  and  by  es- 
tablishing forever  that  due  course  of  law  which  is  to  guide 
the  action  of  the  state  authorities.     These  salutary  provi- 
sions,, with  the  addition  of  that  preserving  the  right  of  a 
person  arrested  and  suspected  of  crime  to  be  enlarged  from 
eonfinement  on  bail,  are  the  same  as  those  protecting  hu- 
man life  which  have  already  been  quoted.     English  history 
clearly  demonstrates  the  proneness  of  a  government,  even  in 
a  country  distinguished  above  most  others  for  the  freedom 
of  its  subjects,  in  times  of  agitation,  to  break  over  the  usual 
slow  and  orderly  proceedings  of  the  law,  and,  under  the  f)lea 
of  necessity,  to  resort  to  arbitrary  arrests,  made  upon  mere 
undefined  suspicion,  and  not  based  upon  the  commission  of 
any  open  act  of  an  acknowledged  criminal  nature,  and  even 
to  seek  for  evidence  by  general  searches  among  the  private 
papers  and  effects  of  suspected  persons.     It  was  to  cut  off 
all  pretence  for  such  invasions  of  private  rights  and  of  the 
municipal  law,  that  the  Constitution,  after  declaring  that  no 
person  shall  be  deprived  of  liberty  without  due  process  of 
law,  descends  to  a  specific  enumeration  of  the  requisite  steps 
to  render  an  official  abridgment  of  personal  liberty  by  con- 
finement legal.     There  must  be  a  warrant  issued  upon  the 
oath  of  some  other  person  testifying  to  the  criminality  of 
the  party  to  be  arrested,  charging  him  with  some  known 
offence  ;  the  confinement  cannot  be  indefinitely  protracted 


374  PERSONS   AND   PEKSONAL   EIGHTS. 

after  the  arrest ;  a  trial  before  a  jury,  and  based  upon  an! 
indictment  of  a  grand  jury,  must  speedily  be  held  ;  and  in 
the  mean  time,  in  the  great  majority  of  cases,  the  prisoner) 
must  be  released  upon  giving  a  reasonable  amount  of  bail.i 
After  the  fact  of  the  crime  has  been  established  by  a  con-, 
viction,  of  course,  the  right  of  liberty  may  be  forfeited. 

§  648.  Under  another  sense,  the  right  of  personal  liberty' 
includes  that  of  freedom  of  speech,  and  of  the  press,  of, 
j)eaceably  assembling  to  discuss  the  measures  of  Govern-| 
raent,  or  any  other  topics,  of  petitioning  the  Government  for! 
a  redress  of  grievances,  and  an  immunity  from  unreasonable! 
searches  of  private  effects  and  papers.  These  privileges  are! 
all  necessary  in  a  free  state,  where  the  people  themselves  are; 
the  ultimate  tribunal  of  appeal  on  all  questions  of  public] 
policy.  There  may  be  occasions  when  a  factious  and  unpa-' 
triotic  use  of  these  guaranteed  rights  will  prove  embarrass-; 
ing  to  the  Government,  and  exasperating  to  all  good  citi-j 
zens,  but  the  evils  which  would  result  from  any  violent  and! 
arbitrary  repression  would  far  outweigh  those  which  follow! 
from  an  occasional  abuse.  i 

While  personal  liberty  is  thus  made  safe  against  the  un-i 
authorized  power  of  the  state,  it  is  also  in  general  protectedj 
from  any  infringement  at  the  hands  of  private  individuals,  j 

§  649.  (2).  Limitations  upon  the  Right  of  Personal  Lih-\ 
erty.  Guarded  as  is  this  inestimal)le  riglit  by  our  law,j 
it  is  not  entirely  unrestrained.  It  is  limited  by  the  neces-J 
sities  of  the  state  itself,  in  preserving  society  ;  it  must  some- 
times yield  to  the  superior  claims  of  the  aggregate  commu-! 
nity.  These  state  necessities  require  that  personal  liberty; 
should  be  abridged  as  a  punishment  for  crime,  and  withj 
what  scrujtulous  care  and  deliberation  this  sovereign  powerj 
is  exercised,  Ave  have  already  seen  ;  they  also  demand  that! 
sometimes  witnesses  for  public  prosecutions  should  be  con- 
fined until  the  time  of  trial,  if  they  are  unable  to  give  bailj 
for  their  appearance ;  and  that  the  nutiiority  of  courtsj 
Bhould  be  supported  by  the  imprisonment  of  persons  guilty  I 


LIMITATIONS   UPON   LTBEETY.  375 

of  contempt  or  of  refusal  to  obey  judicial  orders ;  and  that 
lunatics  should  often  be  subjected  to  a  close  surveillance. 
Freedom  of  speech  and  of  the  press  is  also  restrained  \vithiu 
the  bounds  of  a  just  moderation ;  \vhen  it  descends  into 
licentiouiB  attacks  upon  private  character,  it  becomes  a 
crime,  and  is  severely  punished.  Tlie  right  of  assembling 
is  restricted  to  peaceable  gatherings,  and  mobs  may  be  put 
down  by  the  use  of  extreme  violence,  even  by  the  aid  of  the 
military  arm.  Exemption  from  searches  is  not  complete. 
The  due  execution  of  the  criminal  law  requires  that  prem- 
ises and  even  persons  should  be  searched  for  stolen  goods  or 
for  the  evidence  of  crime.  In  short,  the  Government  is  not 
so  restricted  by  these  constitutional  provisions,  that  the  or- 
dinary measures  of  police  for  the  protection  of  society,  for 
the  arrest,  conviction,  and  puuishment  of  offenders,  and  the 
detection  and  thwarting  of  criminal  designs,  are  hindered. 
Without  doubt,  it  is  often  hard  to  reconcile  these  general 
constitutional  statements  of  personal  rights  with  many  of 
the  common  methods  of  magistrates  and  officers  in  enforc- 
ing police  regulations,  but  it  should  be  remembered  that 
these  safeguards  of  our  fundamental  law  were  not  de- 
signed as  a  shield  for  criminals,  but  as  a  protection  for 
society. 

§  650.  Other  limitations  on  personal  liberty  are  of  a  pri 
vate  nature ;  they  are  either  placed  entirely  in  the  hands  of 
private  persons,  or  are  set  in  motion  through  their  imme- 
diate agency.  The  most  important  exercise  of  this  private 
power  over  individual  liberty,  though  exerted  through 
means  of  the  courts,  is  the  arrest  and  imprisonment  which 
the  law  allows  in  certain  cases  as  a  method  of  enforcing 
payment  of  personal  claims  or  debts.  Imprisonment  for 
debt  was  once  universal  in  England  and  in  the  United 
States.  One  reason  for  its  use  in  the  English  law  as  a 
remedial  measure  is  to  be  found  in  the  fact  that,  until  a 
comparatively  recent  period,  the  restraints  upon  the  free 
commerce  in  lands  originally  imposed  by  the  feudal  system, 


376  PERSONS   AND   TEKSONAL   RIGHTS. 


and  yet  preserved,  were  so  great,  that  it  was  almost  impos-  i 
sible,  or  at  best  attended  with  great  difficulty  and  expense,  ; 
to  collect  a  demand  from  one  who  had  only  landed  posses-  ' 
sions,  by  any  proceeding  directed  against  the  property  it-  i 
self.  As  anciently  a  great  part  of  the  wealth  consisted  in  j 
lands,  it  was  natural  that  a  way  should  be  devised  of  fore-  j 
ing  the  debtor  to  do  what  the  creditor  could  not  himself  do.  \ 
This  was  accomplished  by  placing  before  him  the  alterna-  [ 
tive  of  confinement,  or  converting  his  property  into  money  ; 
to  satisfy  the  claim.  Thus  arrest  and  imprisonment  for  ! 
debt  had  its  origin ;  and  beyond  all  question,  in  those  old  ' 
times  of  greater  simplicity  of  manners,  before  a  widely  ex-  ; 
tended  commerce  and  trade  had  caused  the  nation's  busi- ,' 
ness  and  enterprise  to  be  built  so  much  upon  the  fragile  , 
foundation  of  credit,  indebtedness  was  regarded  much  more  j 
as  a  moral  deKnquency,  as  an  offence  against  right,  as  par-  j 
taking  of  the  nature  of  a  crime,  than  at  present.  But  in  ; 
modern  times,  when  the  fortunes  of  a  large  part  of  the  com-  i 
muuity  may  be  swept  away  by  a  sudden  collapse  of  public  i 
confidence,  such  strictness  is  impossible.  At  all  events,  it  | 
was  established  by  the  English  law,  and  thence  imported] 
into  our  own,  that  in  all  Connnon  Law  actions  to  recover  i 
money  or  property,  the  first  step  might  be  the  arrest  and 
bailing  of  the  defendant,  if  he  was  able  to  give  bail,  and  ; 
that  the  judgment  was  followed  by  the  taking  and  imprison-  | 
ment  of  the  body  of  the  judgment  debtor,  until  the  demand  i 
thus  established  by  law  was  paid.  j 

§  651.  This  severe  coercive  measure  has  been  abandoned 
in  the  United  States  in  the  case  of  all  ordinary  debts,  but  is  | 
still  generally  retained  as  a  help  to  enforce  those  peculiar  j 
classes  of  claims  which  are  characterized  by  an  element  of  ! 
quasi-crirainality.  Therefore,  in  the  pursuit  of  private  ■ 
remedies  for  injuries  to  person,  or  reputation,  or  for  violence  \ 
done  to  property,  such  as  actions  for  an  assault  and  battery,  \ 
for  seduction,  for  slander  or  libel,  for  trespasses  upon  or  for-  j 
cible  taking  or  detention  of  property,  and  of  private  remedies  I 


ENFOKCEMENT   OF   THE    RIGHT   OF   LIBERTY.  377 

against  fraudulent  debtors,  arrest  and  imprisonment  is  still 
in  use  as  a  part  of  the  ordinary  judicial  proceeding. 

§  652.  There  are  other  private  limitations  upon  the  un- 
restricted right  of  personal  liberty,  arising  from  the  domestic 
relations  of  husband  and  wife,  parent  and  child,  and  guar- 
dian and  ward.  Their  full  consideration  would  naturally 
belong  to  the  description  of  these  relations  themselves  ;  they 
are  only  here  briefly  alluded  to,  in  order  tliat  the  subject  of 
personal  liberty  may  be  complete. 

In  general,  by  the  common  law,  as  recognized  in  Eng- 
land and  our  own  country,  the  husband  has  the  custody  of 
the  person  of  the  wife,  and  if  blameless  himself,  may  use 
restraint  toward  her,  even  to  the  extent  of  confining  her  to 
his  dwelling,  when  such  measures  are  necessary  to  prevent 
her  from  eloping,  or  squandering  his  property,  or  going 
into  immoral  company.  The  limits  of  this  power  are  rather 
undefined,  but  so  much  as  is  stated  above,  has  been  clearly 
settled.  The  right  of  the  husband  to  chastise  his  wife  has 
never  been  recognized  in  this  country,  nor  practically  in 
England  since  very  ancient  times. 

The  parent's  right  to  the  custody  of  the  infant  child,  and 
to  inflict  chastisement,  and  to  restrain  him  by  confinement, 
is  well  established,  nor  will  the  law  interfere  with  its  exer- 
cise, except  when  the  parent's  severity  is  incited  by  actual 
positive  malice  toward  his  oflfepring.  Akin  to  the  right  of 
parent  over  child,  is  that  of  guardian  over  ward,  and  teacher 
over  scholar. 

§  653.  (3).  How  the  HigJits  of  Personal  Liberty  may  he 
enforced. — The  remedies  for  any  unlawful  infringements  of 
these  rights  are  compensatory,  and  preventive.  The  com- 
pensatory remedies  consist  in  actions  for  pecuniary  dam- 
ages, brought  by  the  injured  party  against  the  person  who 
has  actually  inflicted  the  wrong,  or  who  has  aided  or  abet- 
ted it.  This  right  of  action  extends  to  every  case  of  unlaw- 
ful interference  on  the  part  of  a  private  person,  and  to  many 
done  by  a  public  oflScer.     All  detention  is  technically  an 


BiS  PERSONS    AND   PERSONAL   RIGHTS. 

imprisonment,  and  the  law  is  so  jealous  of  the  liberty  of  the 
people,  that  an  action  for  false  imprisonment  may  be  main- 
tained, even  when  the  confinement  was  mta-ely  nominal. 

§  654.  But  the  most  important  remedy  for  unlawful  re- 
straint of  liberty  and  detention  of  the  person,  is  that  which 
is  preventive,  which  does  not  delay  for  the  confinement  to 
be  terminated,  but  interferes  at  once,  and  delivers  the  per- 
son from  custody.  This  is  the  writ  of  habeas  co/'j>us,  a  pro- 
ceeding which  is  absolutely  necessary  to  give  practical 
eftect  to  the  well-defined  safeguards  of  the  Constitution. 

The  writ  of  habeas  corpus  is  a  written  order  issued  by  a 
court  or  judge,  directed  to  the  person  detaining  another, 
commanding  hira  to  produce  the  body  of  the  person  de- 
tained, and  to  certify  the  day  and  cause  of  his  arrest  and 
detention,  before  the  com-t  or  judge  who  issued  the  writ, 
and  to  submit  to  whatever  may  be  determined  in  the  mat- 
ter. Upon  the  production  of  the  prisoner,  and  statement 
of  the  cause  of  his  confinement  by  the  person  who  has  him 
in  custody,  the  court  or  judge  proceeds  at  once  to  examine 
and  decide  whether  that  cause  be  legal  or  unlawful ;  if  it 
be  legal,  the  prisoner  is  either  returned  to  the  hands  of  his 
keeper,  or,  in  technical  language,  is  remanded,  or  is  ad- 
mitted to  bail ;  if  illegal,  he  is  at  once  discharged,  or  set  at 
liberty.  The  name  is  derived  from  the  two  important  and 
distinguishing  words  used  in  the  writ,  when  this  and  all 
otlier  judicial  proceedings  were  written  in  Latin.  There 
were  several  other  writs  bearing  the  same  name,  used  for 
difierent  purposes,  but  this  one  alone  is  known  and  spoken 
of  as  the  writ  of  habeas  corpus,  as  its  ofiice  so  completely 
transcends  that  of  all  others. 

§  655.  It  has  been  known  to  the  English  law  for  cen- 
turies, and  was  without  doubt  invented  by  the  judges  to 
enforce  the  protective  clauses  of  Magna  Charta,  although 
some  antiquarians  suppose  that  they  liave  detected  its  exist- 
ence before  that  celebrated  instrument.  It  appears  at  first 
to  have  been  used  solely  as  a  means  of  relief  against  private 


WRIT   OF   HABEAS   CORPUS.  379 

restraint,  but  at  a  very  early  day  was  adopted  as  a  remedy 
against  official  and  governmental  invasions  of  personal  lib- 
erty. The  statute  of  habeas  corj)us,  passed  in  the  reign  of 
Charles  II.,  did  not  then  introduce  this  most  beneficial  pro- 
ceeding ;  the  legislature  only  made  it  certain  and  effectual, 
by  cutting  off  tbe  power  of  judges  to  refuse  it  to  suitors. 

§  656.  From  England  the  writ  was  adopted  into  our 
own  Federal  and  State  law.  What  courts  and  judges  shall 
bave  power  to  issue  it,  and  in  what  cases  that  power  shall 
be  exercised,  depends  upon  the  general  jurisdiction  of  these 
tribunals.  If  they,  like  the  superior  courts  of  England, 
have  an  authority  coextensive  with  the  municipal  law,  to 
entertain  and  decide  cases  of  all  classes  arising  under  the 
provisions  of  that  law,  their  control  over  this  writ  is  regu- 
lated entirely  by  tbe  general  unwritten  law,  and  by  such 
statutes  as  may  have  been  passed  relating  to  the  subject. 
If,  however,  they  were  constituted  by  statutes,  and  thence 
derive  all  their  jurisdiction,  their  power  over  the  writ  ex- 
tends only  so  far  as  the  legislature  may  have  entrusted  it  to 
them.  In  other  words,  one  species  of  tribunals  derive  their 
power  from  a  source  back  of  the  legislature,  and  may  exer- 
cise it  in  all  cases  except  those  in  which  the  legislature  has 
limited  or  destroyed  it.  The  other  sj)ecies  derive  their  au- 
thority from  a  legislature,  and  are  entirely  limited  and  re- 
strained in  their  use  of  it  by  the  statutes  which  conferred 
upon  them  the  judicial  function.  In  the  first  division  are 
embraced  the  superior  courts  of  the  several  States,  which 
represent  those  of  England,  and  administer  the  law  of  ju- 
dicial decision  in  its  widest  scope  ;  in  the  latter  class  are  in- 
cluded a\l  of  the  Federal  courts  of  the  United  States,  which 
draw  their  jurisdiction  enthely  from  the  Constitution  and 
from  statutes  of  Congress  passed  in  accordance  with  the  Con- 
stitution. The  State  courts  then,  being  governed  by  the 
rules  of  the  common,  unwritten  law,  may  and  must  issue 
the  writ  of  haheas  cor;pus  in  all  cases  allowed  by  that  law, 
except  when  they  have  been  restrained  by  State  statutes ; 


3S0  PERSONS    AND    PERSONAL    RIGHTS 

while  the  Federal  courts  can  only  resort  to  it  iu  those  in- 
stances specially  ordered  by  Congress.  The  national  legis- 
lature has  conferred  on  the  United  States  courts  the  right 
to  issue  the  writ  for  the  following  purposes  :  to  inquire  into 
the  cause  of  "  commitment "  generally,  when  the  prisoner 
is  in  custody  by  virtue  of  the  authority  of  the  United 
States,  the  term  commitment  meaning  a  detention  by  vir- 
tue of  some  legal  process  or  proceeding  ;  also  to  inquire  into 
the  cause  of  commitment  or  confinement  when  the  detention 
is  on  account  of  any  act  done  by  the  prisoner  in  pursuance 
of  a  law  of  the  United  States,  or  of  a  direction  from  a  judge 
of  a  United  States  court ;  also  to  inquire  into  the  cause  of 
the  confinement  of  a  subject  or  citizen  of  a  foreign  state, 
when  the  detention  is  on  account  of  an  act  done  under  the 
alleged  authority  of  that  foreign  state.  These  are  the 
cases  in  which  the  Federal  courts  may  resort  to  the  habeas 
corjjus.  The  first  allows  its  use  when  the  arrest  and  con- 
finement has  been  made  in  pursuance  of  some  assumed  legal 
authority  of  an  officer  of  the  United  States,  but  does  not 
extend  to  instances  where  the  deprivation  of  liberty  is  caused 
by  a  mere  private  individual,  or  by  a  State  government,  law, 
or  officer.  The  second  extends  the  privilege  to  persons  ar- 
rested and  detained  by  a  State  law,  court,  or  officer,  in  con- 
sequence of  some  act  done  by  virtue  of  the  authority  of  the 
nation  itself.  This  presents  then  the  case  of  a  direct  colli- 
sion between  the  Federal  and  State  powers.  The  statute 
was  passed  for  a  particular  occasion,  to  meet  the  nullifying 
acts  of  South  Carolina,  and  to  assert  the  supremacy  of  the 
Federal  Congress  and  legislation,  by  summarily  delivering 
from  the  hands  of  the  State  officers  those  persons  who 
should  be  arrested  for  enforcing  the  laws  of  the  nation.  It 
has  frequently  since  been  used,  and  especially  as  a  means 
of  rendering  the  fugitive  slave  law  effective  against  State 
laws  and  courts,  who  have  sometimes  attempted  to  interfere 
with  the  duties  of  the  Federal  officers  by  arresting  and  con- 
fining them  for  alleged  breaches  of  local  legislation.     The 


WRIT   OF   HABEAS   CORPUS.  381 

third  grant  of  aiithority  is  more  limited  in  its  operation  ;  it 
was  given  that  the  national  judiciary  might  have  the  entire 
control  of  forensic  questions  affecting  our  foreign  relations. 
From  this  review  it  is  evident  that  the  power  of  the  courts 
of  the  United  States  to  issue  the  writ  of  habeas  corpus  is 
restrained  within  narrow  bounds, 

§  G57.  The  State  courts  on  the  other  hand,  are  in  general 
confined  by  no  such  limits.  Their  jurisdiction  extends  to 
confinements  and  detentions  by  private  persons,  and  to 
those  caused  by  State  authority  of  any  description  ;  it  goes 
fui'ther  still,  and  may  inquire  into  the  reason  of  detention  of 
persons  deprived  of  liberty  by  Federal  judges  or  executive 
officers,*  In  many  of  the  States,  and  probably  in  all,  the  ac- 
tion of  their  courts  is  regulated,  and  in  some  few  particulars 
limited,  by  statute,  but  \%  would  be  useless  to  inquire  into 
these  various  legislative  modifications  of  the  inherent  juris- 
diction of  the  courts.  It  may  be  assumed,  in  general,  that 
the  courts  and  judges  of  the  several  States  are  obliged  to 
issue  the  writ  when  application  is  made,  unless  that  appli- 
cation itself  shows  that  the  confinement  is  legal.  For  in- 
stance, if  the  prisoner,  when  demanding  judicial  interposi- 
tion in  his  behalf,  should  show  that  he  had  been  regularly 
arrested,  tried  for  a  crime  by  a  competent  court,  condemned, 
and  sentenced  to  confinement,  no  court  or  judge  would  go 
through  the  useless  formality  of  issuing  a  writ,  when  the 
applicant  must  be  immediately  remanded.  On  the  other 
hand,  if  it  should  be  shown  that,  although  the  forms  of  trial 
had  been  observed,  the  court  which  condemned  the  prisoner 
had  no  jurisdiction  in  his  case,  so  that  its  whole  proceedings 
were  void,  then  the  writ  would  be  issued,  and  the  person 
discharged  from  custody.     In  neither  case  would  the  judge 

*  A  late  decision  of  the  Supreme  Court  of  the  United  States,  however,  seems 
to  have  denied  to  the  State  courts  the  power  to  interfere  by  means  of  the  writ 
of  habeas  corpus,  in  any  case  where  a  person  is  held  in  custody  by  the  Federal 
or  national  authority.  This  power  had,  previously  to  this  decision,  been  exten- 
sively exercised. 


3S2  PEKSOTS    AXD    PEKSOXAL   EIGHTS. 

inquire  into  the  actual  guilt  of  the  prisoner  and  the  justice 
of  his  sentence,  for  the  writ  of  habeas  carpus  is  not  intended 
as  a  means  of  reviewing  convictions  and  arrests,  so  as  to  dis- 
cover whether  they  were  based  upon  a  correct  understand- 
ing of  the  facts. 

§  658.  The  following  will  serve  as  examples  of  the  use 
of  the  writ  of  habeas  corpus  by  the  State  courts.  It  is  in- 
voked bj  husbands  to  obtain  possession  of  their  wives  de 
tained  away  against  their  will ;  by  parents  and  guardians 
to  aid  in  recovering  custody  of  their  cliildren  or  wards,  who 
are  controlled  by  persons  not  possessing  the  legal  right  to 
their  custody ;  by  prisoners  in  confinement  by  virtue  of 
warrants  or  other  legal  process  which  are  void  from  some 
inherent  defect,  praying  to  be  set  at  liberty ;  by  prisoners 
in  confinement  by  virtue  of  wari^^nts  or  other  legal  process 
which  are  valid,  asking  to  be  admitted  to  bail ;  by  persons 
arrested  by  State  or  national  military  power,  in  instances 
where  the  martial  law  has  no  jurisdiction  or  application, 
and  the  arrest  is  claimed  to  be  entirely  arbitrary  and  op- 
pressive, and  a  discharge  is  demanded  ;  by  persons  regular- 
ly arrested  and  confined  by  ■vdi'tue  of  some  State  or  Federal 
law,  which  is  claimed  to  be  absolutely  unconstitutional  and 
void.  These  instances  will  suffice  to  show  the  importance 
of  the  writ  of  habeas  corpus  to  a  people  zealous  in  preserv- 
ing their  liberties. 

§  659.  (4).  Of  the  Status  of  Sla/Dery.  The  condition  of 
freedom  naturally  suggests  its  opposite,  that  of  slavery.  In 
speaking  briefly  on  this  subject,  I  shall  not  attempt  to  con- 
sider it  as  a  moral,  political,  or  economical  question,  but 
simply  to  state  some  of  the  more  general  legal  principles 
connected  with  it,  and  especially  to  describe  some  of  the 
causes  which  led  to  its  disappearance  from  England. 

Whatever  may  be  said  of  the  repugnance  of  the  institu- 
tion of  slavery  to  the  natural  law,  it  has  existed  very  gen- 
erally among  difi'erent  nations,  and  was  for  a  long  period 
perhaps  universal.      It  flourished   among   the   Jews,   the 


THE    STATUS    OF   SLAVERY.  383 

Greeks,  the  Eomans,  and  the  German  invaders  of  western 
Europe.  We  have  seen  that  the  primitive  Germanic  society 
was  divided  into  two  great  classes,  the  free,  and  the  unfree  ; 
and  that  the  lowest  grade  of  the  latter  were  absolute  serfs. 
Notwithstanding  its  universality,  the  Roman  jurists,  after 
Gliristianity  had  shed  its  benign  influence  over  their  jui'is- 
prudence,  declared  it  to  be  contrary  to  the  law  of  nature, 
and  to  exist  only  by  positive  enactment.  The  digest  defines 
it  to  be  "  a  constitution  of  the  law  of  nations,  by  which  one 
is  made  subject  to  another  contrary  to  nature."  And  the 
better  class  of  writers  on  public  law  may  be  assumed  to 
be  unanimous  in  supporting  the  principle,  that  we  can  only 
look  for  the  foundation  of  the  relation  of  master  and  slave 
in  positive  legislation  of  some  description ;  that  it  cannot  be 
rested  upon  any  of  those  great  truths  of  natural  law  which 
underlie  and  support  so  much  of  the  jurisprudence  of  differ- 
ent nations. 

§  660.  Slavery  is  a  status  or  condition  implying  pei-pet- 
ual  servitude  to  the  master  or  owner,  upon  whom  it  confers 
the  complete  control  and  dominion  over  the  labor,  actions, 
acquisitions,  and  person  of  the  slave  and  his  offspring,  with 
the  limitation  that  his  life  and  limbs  are  protected  against 
the  owner's  violence,  and  even  this  exception  to  the  abso- 
lute right  has  not  always  existed.  Of  course,  the  rights  of 
owners  are  regulated  by  the  laws  of  the  countries  where  the 
institution  prevails,  and  are  extended  or  limited  according 
to  considerations  of  morality  or  expediency.  Thus,  at  one 
time,  the  Koman  master  had  the  entire  dominion  over  the 
lives  and  limbs  of  his  slaves,  with  power  to  inflict  punish- 
ment of  any  amount  and  description  ;  but  when  the  senti- 
ments of  equity  and  charity  became  more  widely  dissem- 
inated, this  extreme  rigor  was  mitigated,  and  some  protec- 
tion was  given  to  the  servile  class.  In  the  Southern  States 
of  America  it  is  not  considered  expedient  that  the  slave 
should  be  educated,  and  therefore  stringent  laws  have  been 
passed  forbidding  them  to  be  taught  to  read  and  write,  yet 


384  PERSONS   AND   PERSONAL   RIGHTS. 

at  the  same  time  oral  instmction,  especially  in  rclif^on,  is 
permitted  and  favored. 

§  661.  Of  Roman  slavery  I  have  already  spoken.  In 
England  the  institution  existed  in  ancient  times  under  the 
form  of  serfdom,  and  traces  of  it  can  Le  discovered  down  to 
the  reign  of  James  I.  It  is  now,  and  long  has  been,  un- 
known to  the  Common  Law,  which  recognizes  all  persons 
within  its  influence  as  freemen.  The  condition,  rights,  and 
disabilities  of  the  serfs  or  villains  have  been  sufficiently  de- 
scribed in  the  chapters  on  the  Anglo-Saxon  laws,  and  on 
the  feudal  system.  They  were  to  all  intents  slaves,  although 
they  were  distinguished  from  the  servile  classes  in  Rome 
and  some  of  the  United  States  by  this  very  important  char- 
acteristic, that  while  they  j^ossessed  hardly  a  shadow  of 
rights  as  against  their  masters,  in  respect  to  all  other  per- 
sons they  were  in  the  same  condition  as  freemen. 

§  662.  The  extinction  of  serfdom  in  England  is  not  due 
to  any  statutes,  or  to  any  great  and  sudden  change  in  the 
opinions  of  the  governing  classes  in  regard  to  the  morality 
or  expediency  of  the  institution  ;  it  was  the  gradual  and 
progressive  work  of  the  com-ts  in  developing  a  simple  but 
most  comprehensive  legal  principle.  This  principle  wat 
that  the  presumptions  should  always  be  in  favor  of  freedom, 
and  not  of  slavery.  By  the  application  of  this  doctrine  in 
all  possible  ways,  and  by  a  steady  leaning  of  the  judges 
toward  liberty,  the  old  institution  began  to  give  way,  and 
finally  succumbed.  Thus,  very  slight  acts  or  omissions  of 
the  master  toward  his  serf,  w^ere  construed  to  be  manumis- 
sions. Among  these  were  the  vesting  in  him  the  owner- 
ship of  lands,  receiving  homage  from  him,  giving  him  a 
bond,  suffering  him  to  be  on  a  jury,  suffering  him  to  join  a 
religious  community,  bringing  ordinary  actions  against  him, 
joining  with  him  in  an  action,  answering  an  action  brought 
by  liim,  without  setting  up  the  villanage,  all  of  which  were 
taken  as  admissions  of  the  villain's  liberty. 

§  663.  But  the  anxiety  of  the  courts  to  protect  the  status 


EXTINCTION   OF   SERFDOM   IN    ENGLAND.  385 

of  freedom  was  most  clearly  shown  in  those  judicial  pro- 
ceedings directly  carried  on  between  the  master  and  his  al- 
leged slave. 

Of  these  there  were  t%vo  classes.  The  one  was  brought 
by  the  serf  against  his  lord  to  establish  his  rights  and  ca- , 
pacity  as  a  freeman  ;  the  other  was  instituted  by  the  lord 
to  establish  the  villainage.  In  both,  the  burden  of  proof 
was  thrown  on  the  master ;  even  when  the  slave  was  the 
plaintiff,  his  owner  must  prove  his  claim  by  direct  evidence. 
If,  after  he  had  commenced  his  proceeding,  the  lord  should 
fail  to  prosecute  it,  or,  in  technical  language,  should  be 
nonsuited,  his  claim  was  defeated,  and  the  villain  forever 
manumitted.  On  the  other  hand,  if  the  serf  should  be  non- 
suited in  any  action  instituted  by  himself,  he  suffered  no  in- 
convenience, and  was  permitted  to  commence  another. 

§  QG'i.  In  a  suit  prosecuted  by  a  lord  against  his  villain 
to  enforce  his  claim  over  the  latter,  the  fact  of  the  defend- 
ant's serfdom  could  only  be  shown  in  two  ways,  either  by 
his  own  confessions  made  openly  in  a  court  of  record,  or  by 
proof  that  he  and  his  ancestors  had  been  villains  for  a  time 
beyond  the  memory  of  man.  The  lord  must  prove  the  slav- 
ery to  have  been  ancient  and  immemorial,  or  the  defendant 
must  freely  and  formally  acknowledge  it.  If  any  ancestor 
of  the  villain,  near  or  remote,  could  be  shown  to  have  been 
actually  or  constructively  free,  the  master's  claim  was  de- 
feated. To  make  the  judicial  pursuit  of  the  right  of  one 
man  over  the  person  of  another  more  difficult,  the  courts 
further  provided  that  the  fact  of  this  immemorial  condition 
of  slavery  in  the  ancestral  stock  of  the  defendant  could  only 
be  proven  by  the  testimony  of  other  persons  of  the  same 
blood,  who  would  confess  that  they  were  villains,  and  that 
their  common  ancestors  had  been  so  time  out  of  mind. 

§  665.  In  regard  to  the  offspring  of  slaves,  the  Roman 

rule  was,  Partus  sequitur  ventrem,  or  the  status  of  the 

mother  determines  that  of  the  child.    This  maxim  inevitably 

acts  unfavorably  to  the  slave,  for  the  condition  of  the  mother 

25 


386  PERSONS    AND    PERSONAL   RIGHTS. 

can  always  be  ascertained,  while  tliat  of  the  father  may  be 
in  doubt.  Tlie  English  rale  was,  on  the  contrary,  Partus 
sequitur  jpatrem^  or  the  status  of  the  father  determines  that 
of  the  child.  As  a  corollary  to  this  principle,  the.  children 
bom  in  wedlock  only,  of  villain  parents,  were  tliemselves 
serfs,  while  all  bastards  were  free ;  for  by  applying  the  pre- 
sumption in  favor  of  liberty,  it  was  held  that,  as  the  father 
of  a  bastard  was  considered  legally  uncertain,  he  might  pos- 
sibly be  a  free  man,  and  therefore  the  child  should  have  the 
benefit  of  the  doubt.  If,  therefore,  in  a  suit  by  a  lord  against 
his  alleged  villain,  it  should  appear  that  any  male  ancestor 
of  the  latter,  however  remote,  had  been  a  bastard,  that  fact 
at  once  destroyed  the  owner's  claim  ;  for  the  courts  argued, 
with  most  strict  logic,  that  if  the  ancestor  was  a  bastard,  he 
might  have  had  a  free  father,  and  therefore  was  himself  free, 
and  the  discovery  of  a  free  person  in  the  chain  of  descent,  no 
matter  how  many  generations  removed,  destroyed  the  essen- 
tial element  of  immemorial  slavery  in  the  defendant's  family. 
Any  other  circumstance  which  would  show  that  the  status 
had  not  existed  for  a  time  beyond  memory  was  seized  upon 
with  equal  readiness  to  work  the  serf's  manumission. 

§  666.  Tliese  are  some  of  the  particulars  in  which  the 
courts  of  England  at  a  very  early  period  applied  the  strong 
presumptions  in  favor  of  liberty,  and  threw  obstacles  in  the 
way  of  a  judicial  establishment  of  the  condition  of  serfdom. 
As  an  inevitable  consequence  of  the  action  of  the  judges, 
continued  through  generations,  the  institution  expired,  and 
thus,  by  the  natural  development  of  a  single  principle,  the 
common  law  of  England  was  brought  into  a  complete  an- 
tagonism to  any  kind  of  slavery. 

§  667.  Slavery,  in  the  United  States,  is  entirely  a  local 
institution  of  those  States  in  which  it  is  established,  and  rests 
alone  on  positive  legislation.  It  is  a  mistake  to  suppose, 
however,  as  has  been  sometimes  urged,  that  this  positive 
legislation  must  be  in  the  forai  of  statutes ;  for  in  these 
States,  as  well  as  in  all  others,  and  in  England,  the  greater 


EIGHT   OF   PRIVATE   PROPEETT. 


387 


part  of  the  municipal  law  has  never  been  enacted  into  stat- 
utes, but  is  the  product  of  judicial  decision.  "When  it  is  said 
that  slavery  depends  upon  positive  legislation,  all  that  is 
meant  is,  that  it  is  recognized,  provided  for,  and  sustained 
by  the  municipal  law  of  a  country,  and  has  no  force  or  effi- 
cacy or  sanction  beyoud  the  territorial  limits  within  which 
that  law  prevails. 

§  668.  The  general  rules  and  maxims  defining  the  condi- 
tion, rights,  and  disabilities  of  the  servile  class  in  certain  of 
the  United  States,  bear  a  stronger  resemblance  to  those  of 
the  Roman  law,  than  to  those  of  the  old  English  legislation 
respecting  serfdom.  Childi-en  follow  the  status  of  the 
mother.  In  all  judicial  proceedings  between  a  master  and 
an  alleged  slave,  involving  the  question  of  the  existence  of  a 
state  of  servitude,  the  presumptions  are  in  favor  of  slavery, 
and  not  freedom.  This  is  shown  both  by  the  decisions  of 
courts,  and  by  the  provisions  of  statutes.  With  such  fun- 
damental legal  principles  to  guide  their  action,  the  judiciary 
must  contribute  to  the  strength  ^d  security  of  the  institu- 
tion, and  not  to  its  gradual  overthrow. 

3.  The  Right  to  acquire  and  enjoy  Private  Pro])erty. 

§  669.  This  natm'al  right  is  guaranteed  in  the  fullest 
manner  by  the  Federal  and  State  constitutions  to  all  persons 
except  aliens,  or  individuals  of  foreign  birth  and  owing  for- 
eign allegiance,  who  have  not  the  legal  capacity  for  a  full 
enjoyment  of  property  in  lands.  "With  this  single  exception, 
borrowed  from  the  law  of  England,  every  free  person  has 
the  right  to  acquire,  use,  and  dispose  of  all  kinds  of  property 
in  any  manner  which  is  not  directly  injurious  to  his  fellows. 
The  United  States  Constitution  provides  that  no  person  shall 
be  deprived  of  property  without  due  process  of  law,  that  pri- 
vate |)roperty  shall  not  be  taken  for  public  use  without  com- 
pensation, and  that  taxes  shall  be  apportioned  according  to 
the  number  of  inhabitants,  and  thus  guards  against  any 
official  or  private  invasions  of  the  rights  of  ownership. 


388  PERSONS   AND   PERSONAL   RIGHTS. 

§  670.  To  enforce  these  general  prohibitions,  the  law 
affords  abundant  remedies,  both  preventive  and  compen- 
satory. These  consist  in  actions  by  which  a  person  may 
either  recover  his  own  property  which  has  been  unlawfully 
taken  or  withheld  from  him,  or  compensation  for  its  taking, 
detention,  or  injury,  from  the  property  of  the  aggressor,  or 
may,  in  certain  cases,  invoke  the  aid  of  the  courts  to  ward 
off  a  threatened  injury.  In  fact,  by  far  the  greater  part  of 
the  practical  rules  of  om*  municipal  law,  and  of  the  actions 
which  occupy  the  attention  of  the  courts,  relate  to  some  in- 
fringement upon  the  right  of  private  property,  and  to  the 
methods  of  recovering  compensation  for  the  same.  The 
ways  in  which  this  right  may  be  invaded  are  as  numerous 
as  the  transactions  which  can  arise  in  the  complications  of 
business  and  of  society. 

§  671.  Except  through  the  means  of  a  judicial  action,  no 
private  person  may  lawfully  interfere  with  the  property  of 
another.  By  such  an  action  regularly  instituted  and  prose- 
cuted through  the  court,  and  terminating  in  a  judgment,  he 
may  cause  the  defendant's  property  to  be  seized  and  sold, 
and  the  proceeds  to  be  applied  in  discharge  of  his  own 
claim ;  but  still  all  of  this  proceeding  assumes  that  the  per- 
son setting  in  motion  this  legal  machinery  is  not  so  much 
invading  the  defendant's  right  of  property  as  maintaining 
his  own  ;  not  so  much  seizing  another's  possessions  as  retak- 
ing what,  from  some,  prior  transactions,  equitably  belonged 
to  himself.  If  A.,  for  any  reason,  is  indebted  to  B.,  and  the 
latter  enforces  his  claim  through  the  help  of  the  courts,  he 
is,  in  fact,  only  demanding  and  obtaining  a  certain  amount 
of  his  own  property,  which  had  been  in  possession  of  A. 

§  672.  While  private  property  is  thus  protected,  it  is  yet 
subordinated  to  the  public  needs,  to  the  demands  of  the 
state  as  they  are  expressed  througli  the  acts  of  the  legisla- 
ture. This  claim  of  the  state  over  the  property  of  its  indi- 
vidual members  may  be  exj^ressed  and  enforced  in  two 
ways,  by  taxation,  and  by  the  right  of  eminent  domain. 


EIGHT   OF   TAXATION.  389 

Both  of  these  rest  upon  the  same  foundation ;  in  both,  private 
property  is  taken  for  the  public  use,  and  compensation  is 
returned.  In  the  exercise  of  the  right  of  taxation,  the  Com- 
pensation consists  of  the  benefits  which  accrue  to  the  tax- 
payers from  the  very  fact  of  government,  the  protection  to 
themselves  and  their  property,  and  all  the  advantages  of  a 
■well-regulated  society.  When  the  Government  resorts  to  its 
right  of  eminent  domain,  and  appropriates  the  property  of 
a  particular  individual,  it  returns  to  him,  as  the  Constitution 
requires,  special  compensation. 

§  67S.  Taxation,  in  some  form,  is  necessary  in  all  gov- 
ernments, and  the  burden  of  it  is  distributed  among  the 
community  or  certain  classes  of  it,  according  to  some  rule 
of  apportionment.  Thus  it  may  be  a  certain  equal  amount 
paid  by  every  individual,  or  a  capitation  tax  ;  or  a  certain 
percentage  paid  on  the  value  of  property  ;  or  a  certain  fixed 
sum  paid  for  particular  species  of  property  ;  or  for  the  privi- 
lege of  carrying  on  particular  kinds  of  business ;  or  a  duty 
paid  for  the  importation  of  goods.  But  whatever  method 
may  be  resorted  to,  the  authority  of  the  legislature  is  su- 
preme. They  are  the  only  judges  of  the  necessity  or  amount 
of  a  tax,  and  there  is  no  governmental  restraint  upon  their 
power  to  take  the  entire  private  property  of  the  community 
as  a  tax.  Chief  Justice  Marshall  says,  in  a  case  decided 
by  the  Supreme  Court  of  the  United  States :  "The  power  of 
legislation  and  consequently  of  taxation  operates  on  all  the 
persons  and  property  belonging  to  the  body  politic.  This 
is  an  original  principle,  which  has  its  foundation  in  society 
itself.  It  is  gi-anted  by  all  for  the  benefit  of  all.  It  resides 
in  the  Government  as  a  part  of  itself,  and  need  not  be  re- 
served when  property  of  any  description,  or  the  right  to 
use  it  in  any  manner,  is  granted  to  individuals  or  corporate 
bodies.  However  absolute  the  right  of  an  individual  may 
be,  it  is  still  in  the  nature  of  that  right  that  it  must  bear  a 
portion  of  the  public  burdens  ;  and  that  portion  must  be  de- 
termined   by  the  legislature.      This  vital   power  may  be 


390  PERSONS   AND   PEKSONAL   KIGHTS. 

abused,  but  the  interest,  wisdom,  and  justice  of  the  repre- 
sentative body,  and  its  relations  with  its  constituents,  fur- 
nish the  only  security  against  unjust  and  excessive  taxation, 
as  well  as  against  unwise  legislation."  In  another  case,  the 
same  eminent  judge  remarks :  "  It  is  admitted  that  the 
power  of  taxing  the  people  and  their  property  is  essential  to 
the  very  existence  of  government,  and  may  be  legitimately 
exercised  on  the  objects  to  which  it  is  applicable,  to  the 
utmost  extent  to  which  the  Government  may  choose  to  carry 
it.  The  on]y  security  against  the  abuse  of  this  power  ia 
found  in  the  structure  of  the  Government  itself.  In  impos- 
ing a  tax,  the  Government  acts  upon  its  constituents.  This 
is  in  general  a  sufficient  security  against  erroneous  and  op- 
pressive taxation.  The  people  of  a  state,  therefore,  give  to 
their  Government  a  right  of  taxing  themselves  and  their 
property  ;  and  as  the  exigencies  of  the  Government  cannot 
be  limited,  they  prescribe  no  limits  to  the  exercise  of  this 
right,  resting  confidently  on  the  interest  of  the  legislature, 
and  the  influence  of  the  constituents  over  their  representa- 
tives, to  guard  them  against  its  abuse."  Not  only  may  the 
legislature  exercise  the  power  of  taxation  themselves,  but 
they  may  delegate  it  to  local  municipalities,  as  towns,  cities, 
or  villages,  for  the  purpose  of  local  administration.  Thus 
the  assessment  made  by  a  city  common  council  upon  the 
property  holders  benefited  by  the  improvement  of  a  street, 
is  as  truly  an  exercise  of  the  general  power  of  taxation,  as  a 
statute  passed  by  a .  legislature,  and  including  the  whole 
state  within  its  scope. 

§  674.  The  right  of  eminent  domain  is  that  right  which 
the  Government  possesses  to  take  the  private  property  of  an 
individual,  and  appropriate  it  to  a  public  use.  It  is  based 
upon  that  supreme  authority  which  the  state,  the  entire 
body  politic,  holds  over  all  its  mem1)er6 ;  it  flows  from  the 
principle  that  the  rights  and  convenience  of  an  individual 
must  yield  to  the  higher  necessities  or  convenience  of  the 
whole.     Based  upon  the  same  foundation  as  the  power  of 


EIGHT   OF   EMINENT   DOMAIN.  391 

taxing,  it  is  used  for  a  different  purpose  and  in  a  different 
manner.  "  Taxation  exacts  money  or  services  from  individ- 
uals, as  and  for  their  respective  shares  of  contribution  to  any 
public  burden.  Private  property,  taken  for  public  use  by 
right  of  eminent  domain,  is  taken  not  as  the  owner's  share 
of  contribution  to  a  public  burden,  but  as  so  much  beyond 
his  share.  Special  compensation  is  therefore  to  be  made  in 
the  latter  case,  because  the  Government  is  a  debtor  for  the 
property  so  taken  ;  but  not  in  the  former,  because  the  pay- 
ment of  taxes  is  a  duty,  and  creates  no  obligation  to  repay, 
otherwise  than  in  the  proper  application  of  the  tax.  Taxa- 
tion operates  upon  a  community  or  upon  a  class  of  persons 
in  a  coniniunity,  and  by  some  rule  of  apportionment.  The 
exercise  of  the  right  of  eminent  domain  operates  upon  an  in- 
dividual, and  without  reference  to  the  amount  or  value  ex- 
acted Irom  any  other  individual." 

§  675,  The  right  of  eminent  domain  is  sometimes  exer- 
cised directly  by  the  state  as  a  whole,  or  by  some  local  or- 
ganization, as  a  county,  a  town,  or  a  city ;  or  it  is  often 
delegated  by  the  legislature  to  associations  or  corporations 
of  private  persons,  whose  object  is  to  prosecute  some  work 
of  public  improvement.  In  the  former  case  the  state  itself, 
or  the  county,  town,  or  city,  appropriates  the  property  of 
individuals,  generally  land,  for  the  purpose  of  laying  out 
and  building  such  structures  as  canals  and  highways,  but  at 
the  same  time  makes  provision  that  the  value  of  the  proper- 
ty so  used  shall  be  ascertained  by  disinterested  persons,  and 
paid  to  the  owner.  In  the  latter  case  the  corporations  take 
and  pay  for  the  property,  for  the  purpose  of  constructing 
canals,  railways,  turnpikes,  and  the  like.  Practically,  then, 
the  right  of  eminent. domain,  as  restricted  by  the  Constitu- 
tion, consists  in  the  power  which  the  state  has  to  compel  an 
individual  owner  to  sell  his  property  to  the  state,  or  to  a 
corporation  authorized  by  the  state,  for  a  price  to  be  fixed 
by  a  number  of  disinterested  third  persons,  whose  decision 
operates  as  the  verdict  of  a  jury. 


392  PEE80NS    A2<D    PERSONAL    EIGHTS. 

4.  The  Eight  of  Religious  Belief  and  Worship. 

§  676.  Although  this  right  is  recognized  and  guaranteed 
in  the  fullest  manner  by  the  Federal  and  State  Constitutions, 
yet  it  is  subject  to  the  limitation,  that  whatever  the  belief 
may  be,  it  must  not  show  itself  in  acts  which  would  be  re- 
pugnant to  the  general  good  morals  of  the  community.  Our 
law  would  unquestionably  allow  any  person  to  profess  a 
belief  in  the  Koman  mythology,  but  should  some  portions  of 
the  worship  or  sacred  rites  of  that  mythology  be  introduced, 
the  votaries  would  be  treated  as  disturbers  of  society,  and 
punished  accordingly.  The  theory  of  our  national  and 
State  constitutions  is,  that  the  state,  as  an  organic  body,  has 
nothing  whatever  to  do  with  religion  except  to  protect  the 
individuals  in  whatever  belief  and  worship  they  may  adopt ; 
that  religion  is  entirely  a  matter  between  each  man  and  his 
God  ;  that  the  state,  as  separated  from  the  individuals  who 
compose  it,  has  no  existence  except  in  a  figure,  and  that  to 
predicate  religious  responsibilities  of  this  abstraction,  is  an 
absurdity.  "Whatever,  then,^the  state  does,  whatever  laws 
it  makes  touching  religious  subjects,  are  done  and  made  not 
because  the  state  is  responsible,  but  simply  that  the  people 
may  be  secure  in  the  enjoyment  of  their  own  religious  pref- 
erences. Public  labor  is  forbidden  by  law  on  Sunday,  not 
because  the  state,  as  such,  respects  the  sacredness  of  that 
day,  or  attempts  to  enforce  its  observance,  but  because  a 
large  portion  of  its  worthy  citizens  do  regard  the  day  as  sa- 
cred, and  employ  it  for  public  and  private"  worship,  and 
have  a  right  to  be  protected  in  the  quiet  use  of  the  time  for 
those  purposes.  So  far  as  the  state  is  concerned,  the  laws 
forbidding  public  labor  on  Sunday,  stand  on  exactly  the 
same  footing  as  those  forbidding  disorderly  houses,  public 
intemperance,  and  all  other  acts  which  disturb  the  peace. 
The  same  may  be  said  of  laws  against  profane  swearing. 
This  is  not  the  place  to  inquire  into  the  correctness  of  our 
theory  of  the  relations  of  the  state  to  rehirion.     It  is  not 


LIMITATIONS    UPON   PEKSONAL    RIGHTS.  893 

adopted  by  any  other  Christian  government.  Indeed,  al- 
though the  people  composing  our  body  politic  are  doubtless 
as  much  impressed  with  Christian  ideas  as  those  of  any 
other  nation,  our  governments,  both  State  and  national,  by 
ignoring  the  whole  subject,  can  hardly  be  called  Christian. 
It  is  proper  however,  to  remark,  that  there  is  a  growing 
opinion  among  thoughtful  men  all  over  the  comitiy,  that 
this  theory  should  be  abandoned,  and  that,  as  a  state,  we 
should  acknowledge  the  claims  of  God  upon  us,  and  avow 
Him  to  be  the  supreme  ruler  of  nations  in  their  organic  ca- 
pacity, as  well  as  of  the  single  individuals  who  make  up  the 
nation, 

lAmitations  upon  the  Personal  Rights  of  Life,  Liberty, 
and  Property. 

§  677.  The  events  through  which  our  country  is  now 
passing,  have  drawn  public  attention  forcibly  to  these  fun- 
damental rights,  and  to  the  limitations,  if  any,  which  can 
be  lawfully  placed  upon  them.  When  the  contest  in  which 
we  are  engaged  is  ended,  and  the  nation  returns  to  peace, 
many  official  acts  will  be  more  closely  scrutinized ;  the 
foundations  of  executive,  legislative,  and  especially  military 
power,  will  be  restated  ;  whatever  unwarrantable  assump- 
tions of  authority  have  been  made,  will  be  rebuked  ;  what- 
ever legal,  though  unaccustomed,  powers  have  been  evoked, 
will  be  admitted,  and  their  use  in  the  sacred  cause  of  the 
nation's  defence  will  be  sustained.  It  is  proper  that  all 
educated  and  thinking  persons*  should  understand  the  gen- 
eral principles  upon  which  the  resolution  of  these  moment- 
ous questions  depends.  They  form  a  part,  and,  it  appears 
now,  a  most  important  part,  of  that  constitutional  law,  with 
which  every  good  and  true  citizen  should  be  familiar. 

§  678.  I  propose  then  briefly  to  examine  whether  there 
are  any  limitations  upo]i  the  general  safeguards  which  the 
Constitution  throws  around  life,  liberty,  and  property  ;  when 
and  to  what  extent  these  limitations  apply  ;  and  which  de- 


394  PERSONS    AND    PERSONAL   RIGHTS. 

partment  of  Governnient  may  rightfully  exercise  the  power 
of  calling  them  into  operation.  Tliis  investigation  will  em- 
brace the  subject  of  arbitrary  arrest  and  imprisonment  of 
persons ;  of  saspension  of  the  privilege  of  the  writ  of  habeas 
corpus;  of  trials  for  crimes,  and  in  methods,  unknown  to  the 
ordinary  law  ;  and  of  searches  and  seizures  of  property  with- 
out judicial  warrant  and  the  process  of  courts. 

§  679.  As  a  preliminary  to  this  examination,  I  will  reca- 
pitulate the  substance  of  the  more  -important  constitutional 
provisions  which  are  the  strong  bulwarks  of  personal  rights. 
These  protect  the  people  in  their  persons  and  property 
against  unreasonable  searches  and  seizures ;  forbid  war- 
rants to  issue  except  on  probable  cause  supported  by  oath  ; 
declare  that  no  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime  unless  upon  presentment  or  in- 
dictment of  a  grand  jury,  except  in  cases  arising  in  tue  land 
or  naval  forces,  and  in  the  militia  when  in  actual  service ; 
that  no  person  shall  be  deprived  of  life,  liberty,  or  i3ro]3erty 
without  due  process  of  law,  which  includes  all  the  regular 
forms  of  proceeding  known  to  the  Common  Law ;  that  trials 
for  crime  shall  be  speedy  and  public,  before  a  jury  ;  that  ex- 
cessive bail  shall  not  be  required,  nor  cruel  nor  miusual 
punishments  inflicted  ;  and  that  "  the  privilege  of  the  writ 
of  habeas  corpus  shall  not  be  suspended,  unless  when,  in 
cases  of  rebellion  or  invasion,  the  public  safety  may  re- 
quire it." 

§  680.  These  are  the  most  important  clauses  to  which 
we  all  appeal  as  an  authoritative  statement  of  our  personal 
rights,  and  a  restriction  upon  the  powers  of  Government.  In 
determining  what  scope  is  given  by  them  for  govei-nmental 
action,  we  must  ascertain  their  meaning  and  application, 
and  in  doing  this  there  are  on  ■  or  two  rules  of  interpretation 
which  will  aid  us.  One  rale  is,  that  these  constitutional  pro- 
visions should  be  read  according  to  their  plain  and  common 
meaning,  without  recourse  to  any  artificial  or  technical  con- 
struction, unless  certain  words  or  phi-ases  are  eraploved  in  a 


CONGKESS    AND   PARLIAMENT   COMPAKEI.  395 

distinct  teclmical  sense.  Siicli  words  and  phrases  are  used  ; 
and  among  them  "  writ  oi  habeas  corjpiis^''  "  warrant,"  "  dne 
process  of  law,"  which  are  strictly  legal  terms.  But  when 
the  proper  signification  is  given  to  these  words,  the  portions 
of  the  Constitution  in  which  they  occur,  as  well,  in  fact,  as 
all  other  parts,  must  be  construed  according  to  the  plain 
and  common  import  of  the  language.  This  is  a  principle 
thoroughly  settled  by  judicial  decision. 

§  681.  Wlien  we  attempt  to  discover  the  application  of 
these  several  provisions  to  the  departments  of  Government  in 
defining  their  respective  powers,  the  analogy  of  the  English 
constitution  cannot  be  implicitly  followed,  although  it  serves 
to  throw  much  light  upon  our  own.  The  great  principles 
of  freedom  and  security  of  life  and  property,  which  are  em- 
bodied in  our  organic  law,  were  directly  boiTowed  from  that 
of  England,  from  Magna  Charta,  the  Petition  of  Right,  the 
habeas  corpus  act,  and  the  Bill  of  Bights.  To  them  we  must 
look  for  the  spirit  of  these  enactments ;  in  English  history 
we  discern  the  struggles  in  which  these  rights  were  nour- 
ished and  strengthened,  until  they  attained  vigor  and  full 
development.  But  the  methods  in  which  these  principles 
are  practically  applied  in  England  and  the  United  States 
are  different.  The  English  Constitution  consists  of  tradition 
and  statutes,  and  Parliament  is  supreme  over  each.  Its. acts, 
altering  this  Constitution,  become  a  part  of  the  Constitution 
itself.  It  has  power  to  remodel  the  judiciary,  abolish  the 
national  church,  repeal  the  guarantees  of  the  BiU  of  Rights, 
of  the  habeas  corpus  act,  or  even  of  Magna  Charta.  The 
prerogative  of  the  courts  to  decide  upon  the  validity  of  an 
act  of  Parliament,  and  declare  it  unconstitutional  and  there- 
fore void,  is  unknown  in  England. 

§  682.  With  us.  Congress,  the  executive,  and  the  judi- 
ciary, are  coordinate,  independent  checks  upon  one  another, 
each  possessing  defined  powers  conferred  upon  it  by  the  or- 
ganic  law  which  gave  them  all  being.  Neither  can  right- 
fully assume  functions  denied  to  it,  nor  infringe  upon  the 


396  PERSONS    AND   PERSONAL   RIGHTS. 

established  authority  and  duties  of  the  other.  Congress  is 
undoubted  1 J  the  most  powerful  department  of  the  Govern- 
ment, as  it  is  natural  and  just  that  the  law  making  branch 
shonld  be  suj^erior  to  the  law  executing,  or  tlie  law  inter- 
preting. 

§  683.  In  construing  the  Federal  Constitution,  we  cannot, 
then,  transfer  all  the  acts  of  the  English  Government  to  our 
own,  and  make  them  precedents.  We  do  recur  to  English 
history  to  learn  the  foundation,  value,  and  defences  of  the 
invaluable  personal  rights  we  are  discussing,  and  to  discover 
the  spirit  in  which  they  have  been  fortified  and  perpetuat- 
ed, and  the  occasions  on  which  they  have  been  temporarily 
suspended  ;  but  when  we  come  to  determine  the  manner  and 
means  in  which  they  are  to  be  preserved  or  suspended  hy 
tis,  the  analogy  is  not  so  perfect.  The  Federal  Congress  has 
but  a  slight  resemblance,  in  the  extent  of  its  authority,  to 
Parliament ;  the  Federal  judiciary  is  far  more  powerful  than 
the  superior  courts  of  England.  The  department  of  the 
English  Government  which  has  been  most  feared,  with  which 
the  contests  have  been  the  fiercest,  and  which  is  now  com- 
pletely hedged  in  with  restrictions,  is  the  crown.  This  con- 
tinued jealousy  of  the  political  power  of  the  crown  proceeds 
from  the  fact  that  it  is  a  unit,  governed  by  one  will  and 
purpose ;  but  principally  from  the  fact  that  it  is  hereditary, 
only  answerable  to  the  people  in  mere  theory,  and  practi- 
cally only  to  be  reached  by  the  revolutionary  measures  of 
deposition  or  expulsion  from  the  throne.  The  Federal  Presi- 
dent is  ho  directly  responsible  to  the  people,  and  holds  his 
office  for  so  short  a  time,  that  little  danger  is  really  to  be 
apprehended  from  his  unwarrantable  assumptions  of  power. 

Having  thus  stated  the  constitutional  provisions  which 
secure  general  personal  rights,  and  the  light  imder  which 
they  are  to  be  interpreted,  I  will  proceed  to  examine  their 
meaning  and  effect. 

§  684.  I.  What  is  the  effect  of  these  guarantees  con- 
tained in  the  organic  law  ? 


KESTEICTIONS    UPON   GOVEKNMENT.  397 

It  is  necessary  to  fully  comprelienJ  tlie  far-reach- 
ing influence  of  these  fundamental  statements  of  personal 
rights,  to  apprehend  their  full  meaning  and  consequence, 
before  we  can  ascertain  when  and  by  what  means  they  may 
be  temporarily  displaced.  A  full  appreciation  of  their  vital 
force  can  only  be  attained  by  a  careful  analysis  of  English 
constitutional  history,  and  a  comparison  with  the  annals  of 
other  European  countries  in  which  the  principles  of  lib- 
erty have  been  overcome  in  the  struggle  with  prerogative. 
I  can  only,  however,  give  mere  dry  conclusions,  without 
attempting  to  illustrate  by  historical  precedents.     And, 

§  685.  1.  These  constitutional  guarantees  are  binding 
with  equal  force  upon  the  legislature,  upon  the  executive, 
and  upon  the  judiciary.  The  will  of  the  people  has  spoken 
through  their  organic  law,  and  the  government  which  they 
have  created,  and  even  themselves,  who  called  that  govern- 
ment into  being,  must  alike  bow  to  the  authority  of  these 
declarations  of  right.  Furthermore,  as  the  clauses  in  ques- 
tion are  mandatory  and  peremptory  in  their  nature,  and  di- 
rected at  once  to  each  branch  of  the  Government,  they  re- 
quii'e  no  statute  of  Congress,  decision  of  judge,  or  act  of 
President,°to  execute  them,  and  give  them  binding  efficacy. 
They  execute  themselves  without  the  aid  of  an  inferior  law. 
Any  proceeding  of  the  Government  in  derogation  of  their 
command  would  be  void,  any  proceeding  declaratory,  would 
be  useless.  This  proposition  is  evident  in  reference  to  those 
provisions  contained  in  the  amendments  to  the  Constitution. 

§  686.  The  clause  relating  to  the  writ  of  hcibeas  corpus 
is  praGtically  permissive  to  some  one  department  of  the 
Government  or  other.  Even  if  it  does  not  directly,  or  by 
necessary  implication  from  the  very  language  used,  confer 
the  power  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus  during  the  times  of  invasion  or  rebellion,  it  assumes 
that  power  to  exist  in  the  Government,  with  such  strength 
and  cogency  of  inference^  that  courts^  legislature^  and  execxi- 
tive^  must  also  assume  it  to  exist.     The  necessary  scope  and 


398  PERSONS   AND   PEESONAL   EIGHTS. 

* 

meaning  of  tlie  clause,  therefore,  is  either  clirectlj  to  create 
the  power,  or  to  peremj^toiily  recognize  it  as  created  by 
some  other  portion  of  the  Constitution ;  and  these  two  con- 
stmctions  practically  amount  to  the  same  thing,  for  from 
either,  the  authority  residing  in  some  department  to  suspend 
the  privilege  of  the  writ,  flows  as  an  inevitable.consequence. 

§  687.  2.  Assuming  that  the  power  granted  by  the  Con- 
stitution to  suspend  the  privilege  of  the  writ  of  habeas  cor- 
pus in  certain  specified  cases,  has  been  rightfully  exercised, 
we  are  to  inquire  what  is  the  result  of  such  act  of  suspen- 
sion upon  the  powers  and  functions  of  the  Government  and 
the  rights  of  the  people  of  the  United  States  ?  We  have 
seen  that  certain  clauses  of  the  organic  law  are  peremptory 
upon  our  rulers,  and  that  the  writ  of  Jutbeas  corpus  may  be 
made  inoperative  under  certain  conditions  ;  does  this  per- 
mitted act  of  the  Government,  through  some  one  of  its  de- 
partments, confer  any  authority  to  destroy  the  negative  effi- 
cacy of  these  other  clauses,  any  ability  to  escape  from  their 
restiictive  energy  ? 

§  688.  (1).  "What  does  suspending  the  privilege  of  the  writ 
of  habeas  corpus  mean  ?  Some  distinction  has  been  drawn 
by  late  writers,  between  the  words  "  suspending  the  privilege 
of  the  writ,"  and  suspending  the  writ  itself.  The  ejffect  of 
the  first  would  be  to  allow  the  writ  to  be  issued  by  a  judge 
when  demanded,  but  to  destroy  its  efficacy  by  legah'zing  a 
disobedience  of  its  commands ;  the  other  would  imply  an 
injmiction  upon  the  judiciary  not  to  issue  the  writ  when  de- 
manded. It  is  admitted  that  such  a  power  as  this  latter 
could  only  be  exerted -by  a  legislature  which  clothed  the 
judges  with  authority  to  use  these  writs  as  a  part  of  theii 
judicial  procedure,  while  it  has  been  claimed  that  the  exer- 
cise of  the  former  species  of  restraint  is  merely  executive, 
and  does  not  need  the  sanction  of  the  legislative  consent.  It 
may  be  doubted,  however,  whether  the  Constitution  is  to 
be  construed  with  any  such  refined  distinctions,  which  make 
grants  of  enormous  power  to  depend  upon  the  employment 


SUSPENSION   OF   THE   HABEAS    CORPUS.  399 

of  a  single  word  in  a  sentence.  The  plain  meaning  of  tlie 
clause  is,  that  the  right  given  to  a  prisoner  by  statute  or  by 
the  Common  Law,  to  have  his  case  summarily  examined  by 
means  of  the  writ  of  habeas  corpus^  and  himself  tried,  bailed, 
or  discharged,  as  the  circumstances  require,  may  be  taken 
away  for  a  season,  during  the  existence  of  an  invasion  or  re- 
bellion. This  is  the  evident  import  of  the  clause,  whether 
the  suspension  is  the  effect  of  an  act  of  Congress  giving 
power  to  the  President  or  other  officials,  or  whether  the 
Constitution  grants  this  power  directly  to  the  executive  as 
a  part  of  his  civil  functions. 

§  689.  (2).  But  suspending  the  writ  of  habeas  corpus,  or 
the  privilege  of  the  writ,  and  the  right  to  the  speedy  in- 
quiry into  the  cause  of  imprisonment  which  it  implies, 
leaves  all  the  other  constitutional  guarantees  of  life,  liberty, 
and  property  intact ;  they  remain  in  as  full  force  and  effi- 
cacy, as  though  the  writ  of  habeas  corpus  were  left  in  ac- 
tive operation.  The  absence  of  the  writ  of  haheas  corpus, 
or  the  destruction  of  its  utility  as  a  remedial  measure,  does 
not  confer  power  on  the  executive  or  his  subordinates  to  ar- 
rest or  imprison  in  any  other  way,  or  for  any  other  cause, 
than  that  laid  down  in  the  Constitution ;  nor  on  Congress, 
to  pass  laws  providing  for  such  arrests  or  other  invasions  of 
private  rights,  or  freeing  the  executive  officers  from  the 
penalties  of  any  illegal  acts  which  they  may  have  commit- 
ted ;  nor  on  the  judiciary,  to  arrest,  try,  or  condemn,  in  any 
other  manner  than  that  established  as  the  "  due  course  of 
law."  These  several  personal  rights  of  life,  liberty,  and 
property  do  not  flow  as  consequences  from  the  existence  of 
the  writ  of  haheas  corpus — they  are  something  above  and 
beyond  that.  On  the  contrary,  the  writ  of  habeas  corpus  is 
the  result  of  the  anterior  existence  and  enjoyment  of  the 
right  of  freedom,  invented  by  the  judges  to  sustain  and  en- 
force that  inestimable  privilege.  In  the  English  and  our 
several  State  courts,  the  claim  which  an  imprisoned  person 
has  to  the  assistance  of  this  writ,  flows  primarily  from  the 


400  PERSONS    AND   PERSONAL    RIGHTS 

Common  Law ;  iu  tlie  Federal  courts  it  proceeds  enurely  from 
6tatuj;es  of  Congress.  These  other  more  geueral  and  com- 
prehensive riglits  are  based  upon  something  superior  iu  au- 
thority to  the  Common  Law  or  statutes,  the  su])reme  organic 
law  of  the  nation.  Much  of  the  doubt  and  confusion  in  re 
gard  to  this  subject  result  from  the  palpably  false  assump- 
tion, that  suspending  the  privilege  of  the  writ  of  habeas 
corpus  carries  with  it  for  the  time  the  suspension  of  other 
constitutional  guarantees,  and  enables  the  President,  or  legis- 
lature, or  judiciary,  to  make  arrests,  hold  in  confinement, 
try,  and  condemn,  in  some  other  way  than  that  provided  for 
in  the  constitutional  Bill  of  Rights. 

§  600.  (3).  The  viTit  of  habeas  corpus  is  only  a  remedy  by 
which  a  person  can  be  summarily  delivered  from  unlawful 
imprisonment ;  a  means  of  sustaining  and  enforcing  the  ex- 
alted right  of  personal  liberty.  It  is  only  one  of  several 
remedies,  the  others  distinct  from  it,  but  all  founded  upon  the 
illegality  of  certain  species  of  arrest  and  confinement.  IS^ow, 
it  is  well  settled  by  numerous  decisions,  and  has  become  a 
part  of  our  constitutional  law,  as  well  of  the  nation  as  of 
the  several  States,  that,  while  the  legislature  may  alter  rem- 
edies, or,  in  other  words,  the  judicial  means  of  enforcing 
rights,  they  cannot  take  away  or  destroy  causes  of  action,  or, 
in  other  words,  the  rights  themselves  which  may  be  judi- 
cially established ;  nor  can  they  destroy  all  remedies,  for  this 
would  be  in  efi'ect  destroying  a  cause  of  action.  The  Con- 
stitution gives  to  some  department  (for  the  purposes  of  our 
present  inquiry  it  matters  not  which),  the  power  in  certain 
cases  to  make  this  single  remedy  of  the  writ  of  habeas  cor- 
pus inoperative,  but  no  power  to  take  away  the  others ;  for 
this  would  be  indirectly  destroying  the  personal  rights  se- 
cured by  the  Constitution,  and  what  the  Government  is  for 
bidden  to  do  directly  it  cannot  do  by  an  evasion.  Tliese 
other  remedies  are  compensatory,  and  consist  in  actions  for 
damages  against  the  officials  who  have  infringed  upon  per- 
sonal rights  by  illegal  arrests  or  seizures.     In  this  respect 


CIVIL    rOWEK   OF    GOVERNMENT   LIMITED.  401 

the  executive,  the  legislature,  and  the  judiciary  are  placed 
by  the  Constitution  in  the  same  condition.  "While  the  priv- 
ilege of  the  writ  of  habeas  corpus  may  be  suspended  by  Con- 
gress or  President,  I  do  not  now  assume  which.  Congress 
can  in  no  case  deprive  an  injured  person  of  the  right  of  pur- 
suing the  other  remedies  and  enforcing  his  just  claims,  by 
indemnifying  or  protecting  the  President  or  other  ministe- 
rial officers  fVom  the  consequences  of  acts  wrongful' in  them- 
selves. Here  the  analogy  between  our  own  Constitution 
and  that  of  England  cannot  be  trusted ;  for  Parliament,  be- 
cause it  has  supreme  control  over  the  whole  subject,  and 
the  power  to  unmake  what  it  has  once  created,  to  alter  the 
whole  course  of  the  law,  and  to  take  away  rights  or  bestow 
them,  may,  by  subsequent  statutes,  save  harmless  the  minis- 
terial officers  of  the  crown  from  the  effects  of  their  unwar- 
ranted measures,  and  legalize  acts  which,  at  the  time  of  their 
commission,  were  flagrantly  in  violation  of  law.  These 
enabling  statutes  of  Parliament  have  been  quite  frequent  in 
times  of  excitement  and  sedition. 

§  691.  (4).  A  suspension  of  the  writ  of  habeas  corpus, 
therefore,  simply  deprives  the  person  imprisoned  of  one 
species  of  remedy,  although  a  most  important  one  ;  it  does 
not,  by  any  inherent  quality  of  transmutation,  legalize  the 
confinement;  the  character  of  that  deprivation  of  liberty, 
whether  lawful  or  illegal,  must  depend  upon  other  circum- 
stances ;  nor  does  it  for  the  time  deprive,  the  prisoner  of 
other  remedies  secured  him  by  law  ;  much  less  does  it  con- 
fer any  active  power  upon  either  department  of  the  Govern- 
ment, but  only  gives,  for  the  time  being,  the  passive  power 
of  resistance  to  the  claims  of  the  prisoner  for  summary  re- 
lief, presented  and  attempted  to  be  enforced  through  certain 
machinery  of  the  courts. 

§  692.  3.  The  result  of  this  investigation  is,  that  the  Con- 
stitution, while  it  grants  to  the  executive  or  to  the  legisla- 
ture, authority  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus,  does  not  confer  on  either  of  these  coordinate  depart- 
26 


i03  PERSONS  AjStd  personal  eights. 

ments  of  the  Government  the  civil  power  to  destroy,  or  even 
weaken  for  a  time,  the  strong  bulwarks  which  have  been 
thrown  np  around  the  most  cherished  personal  rights  of  the 
people ;  that  the  conserving  element  of  our  organic  law  is 
so  controlling,  its  principles  so  sharply  defined  and  precise- 
ly stated,  that  there  is  no  civil  authority  residing  in  the  Gov- 
ernment to  evade  them  ;  that  while  the  Government  reposes 
upon  its  civil  functions,  all  arrests,  imprisonments,  trials, 
condemnations,  all  seizures,  all  deprivations  of  life,  liberty, 
and  property,  must  be  made  according  to  the  "  due  process 
of  law  "  desciibed  by  the  Constitution,  and  knowm  in  Eng- 
land since  the  epoch  of  Magna  Cliarta,  when  it  was  express- 
ed by  the  term  the  "  law  of  the  land." 

It  seems  to  me  that  these  conclusions  are  irresistible, 
and  that  we  must  look  further  into  the  organic  law  for  the 
source  of  the  governmental  power  to  evade  these  constitu- 
tional restrictions  protective  of  personal  rights,  to  make  ar- 
I'ests  and  seizures,  and  hold  trials  and  inflict  punishments  at 
times,  for  causes,  and  in  a  manner,  forbidden  by  the  Bill  of 
Rights. 

§  693.  n.  Does  such  a  power  exist  ?  My  answer  and 
proposition  is,  that  it  does,  and  may  be  rightfully  exercised 
under  certain  conditions,  and  these  conditions  are  satisfied 
when  an  invasion  or  rebellion  is  in  progress,  or,  in  other 
words,  when  a  war  is  actually  raging  within  the  territory 
of  the  country  itself. 

§  694.  1.  Whatever  authority  the  Government  may  at 
any  time  rightfully  possess,  whatever  power  it  may  lawful- 
ly assume  either  in  peace  or  in  war,  either  in  the  ordinary 
course  of  administration  or  in  the  exceptional  circumstances 
of  rebellion  and  foreign  or  domestic  hostilities,  whatever 
means  it  may  employ  to  preserve  its  own  existence  or  that 
of  the  nation  as  a  distinct  organization,  must  be  drawn  di- 
rectly or  l>y  necessary  implication  from  tlie  Constitution, 
which  gives  the  Government  being,  and  in  which  the  nation 
is  organically  embodied.     It  is  in  vain  to  look  beyond  this 


WAR   POWERS    OF   GOVERXMENT.  403 

lunuamental  law  for  something  superior  to  it.  We  cannot, 
in  search  of  a  practical  basis  on  which  to  rest  any  assump- 
tion of  authority,  raise  the  nation  itself  above  the  organic 
law.  The  notion  that  we  may  resort  to  the  instinct  of  self- 
preservation,  or  to  the  plea  of  necessity,  for  the  source  of 
power  to  do  acts  unwarranted  by  the  Constitution,  is  in  the 
highest  degree  pernicious,  leading  to  anarchy,  and  therefore 
to  tyranny.  We  must  stand  by  the  charter  which  we  have 
adopted  for  ourselves,  or  else  we  become  disintegrated,  and 
our  national  existence  destroyed  ;  we  would  remain  the 
some  collection  of  individuals,  residing  on  the  same  soil,  but 
our  distinctive  character  as  a  body  politic,  that  which  makes 
us  the  United  States  of  America,  would  be  gone.  We,  as 
individuals,  might  again  organize  and  form  a  government, 
but  it  would  be  a  new  one,  cut  off  from  the  old  nationality 
by  an  impassable  line.  But  we  are  not  left  without  au- 
thority for  the  Government  to  exert  its  conserving  force, 
even  in  derogation  of  the  individual  rights  guaranteed  by 
the  Constitution. 

§  695.  2.  The  Constitution,  by  providing  that  Congress 
may  declare  war,  raise  armies  and  navies,  and  make  rales 
for  their  government,  and  that  the  President  shall  be  com- 
mander-in-chief of  the  forces,  recognizes  the  possible  exist- 
ence of  war,  and  with  it  all  those  inevitable  consequences 
and  necessary  adjuncts  which  are  universally  admitted  as 
accompanying  and  belonging  to  war.  Peace  is  the  normal 
condition  of  this  as  well  as  of  every  other  country  ;  and  the 
Constitution,  in  all  its  provisions,  was  more  particularly 
framed  for  the  administration  of  public  affairs  and  the 
regulation  of  society  in  that  condition,  but  yet  it  did  not 
contemplate  that  a  state  of  war  was  to  be  a  state  of  peace. 
The  framers  knew  that  the  progress  of  hostilities  brings  with 
it,  amid  other  evils,  a  revolution  in  social  order ;  that,  for 
the  time,  all  other  interests  are  secondary  to  the  absorbing 
purpose  of  repelling  force  with  force  ;  that  the  whole  ener- 
gies of  the  Government  and  of  the  citizens  must  be  directed 


i04  PERSONS   AND   PERSONAL   RIGHTS. 

toward  the  one  object  of  success  iu  arms ;  that  the  usual 
avocations,  customs,  modes  of  thought  and  of  administration, 
must  be  temporarily  superseded  by  the  more  peremptory 
methods  of  military  discipline  and  movements.  But  while 
they  recognized  all  these  facts,  they  did  not  attempt  to  de- 
scend to  particulars  in  enumerating  the  incidents  of  war, 
and  the  rights  and  powers  which  accompany  it,  because 
they  knew  that  nothing  can  be  more  variable  than  the  con- 
dition of  hostilities.  But  when  the  Constitution  says  that 
war  may  be  declared,  it  means  that  all  its  numerous  train 
of  necessary  evils  must  be  brought  with  it.  When  it  says 
that  the  President  is  commander-in-chief,  it  means  that,  as 
such  commander,  he  is  clothed  with  all  those  belligerent 
powers  which  war  demands  for  its  successful  prosecution. 
It  did  not  attempt  to  abridge  these  powers,  nor  even  to  de- 
fine and  limit  them,  and  thus  hamper  the  Government,  but, 
recognizing  the  fact  that  war  must  often  override  the  due 
course  of  civil  law,  and  that  generals  and  armies  must  often 
do  things  contrary  to  the  well-ordered  condition  of  peace, 
it  left  the  whole  subject  where  it  has  been  placed  by  all 
writers  on  public  law,  and  by  the  practice  of  civilized  na- 
tions ;  it  conceded  that  the  rights  of  life,  liberty,  and  proper- 
ty, as  they  are  hedged  about  by  certain  careful  provisions 
of  the  Constitution  adapted  to  the  common  course  of  events, 
must  at  tiuies  yield  to  the  imperious  necessities  of  a  state  of 
hostilities.     Inter  arma  silent  leges. 

§  696.  3.  One  of  these  necessary  adjuncts  and  inevitable 
consequences,  which  at  times  follow  a  state  of  hostilities,  is 
the  existence  of  martial  law  ;  and  this  law,  which  is  implicit- 
ly contained  in  the  Cbnstitu  don,  gives  fiijl  power  to  the  Gov- 
ernment to  suspend  the  privilege  of  the  writ  of  habeas  coT' 
2)U8^  to  make  arrests  and  seizures  of  persons  and  ^^roperty, 
to  hold  trials,  and  to  inflict  pun:.shments,  for  other  causes, 
at  other  times,  and  in  another  manner,  than  those  pre- 
scribed by  the  general  Bill  of  Bights. 

§  G97.  (1).  A  full  understanding  of  the  meaning  of  the 


MARTIAL   LAW   DEFINED.  405 

term  martial  law,  is  a  prerequisite  to  the  determination  of 
the  question  whether  it  can  exist  in  this  ctmntry  as  a  concom- 
itant of  war.  There  is  much  uncertainty  and  error  on  this 
subject  even  in  works  of  high  repute.  "  Military  law  "  and 
"  martial  law  "  are  entirely  distinct.  The  former  is  the 
code  of  regnlations  for  the  government  of  troops  alone, 
either  in  peace  or  war ;  it  is  really  a  part  of  the  civil  law, 
applicable  only  to  a  certain  class  of  citizens,  those  engaged 
in  military  pursuits  ;  it  is  as  susceptible  of  being  reduced  to 
well-defined  rules  and  methods  as  any  branch  of  the  statute 
or  common  law  of  the  country.  The  Constitution  of  the 
United  States  requires  that  it  shall  be  enacted  by  Congress, 
in  the  same  manner  and  with  the  same  force  and  effect  as 
any  other  legislation.  It  is  contained  in  that  code  called 
the  "  articles  of  war."  This  military  law  is  not  the  source 
of  the  extraordinary  power  in  question. 

§  698.  Martial  law  is  different,  and  is  not  from  its  very 
nature  so  easy  to  define.  The  most  complete  and  accurate 
definition  which  I  have  met  is  contained  in  the  "  North 
American  Review  "  for  October,  1861,  in  an  article  attrib- 
uted to  one  of  the  distinguished  ju'ofessors  at  the  Harvard 
law  school,  which  I  quote  and  adopt.  "  Martial  law  is  that 
military  rule  and  authority  which  exists  in  time  of  war,  and 
is  conferred  by  the  laws  of  war,  in  relation  to  persons  and 
things  under  and  within  the  scope  of  active  military  opera- 
tions in  carrying  on  the  war,  and  which  extinguishes  and 
suspends  civil  rights,  and  the  remedies  founded  upon  them, 
for  the  time  being,  so  far  as  it  may  appear  to  be  necessary  in 
order  to  the  full  accomplishment  of  the  purposes  of  the  war ; 
the  party  who  exercises  it  being  liable  for  any  abuse  of  the 
authority  thus  conferred.  It  is  the  application  of  military 
government — the  government  of  force — to  persons  and  prop- 
erty within  the  scope  of  it,  according  to  the  laws  and  usages 
of  war,  to  the  exclusion  of  the  municipal  government,  in  all 
respects  where  the  latter  would  impair  the  efficiency  of  mil- 
itary rule  and  military  action."     It  applies  as  well  to  civil- 


i06  PERSONS   AND    PERSONAL    RIGHTS. 

Jans  as  to  persons  in  the  armj,  and  altbougli  very  general 
in  its  scope,  is  not  entirely  arbitrary  and  capricious.  It 
cannot  be  denied  tliat  some  writers  wbo  have  deelainaed 
against  tbe  martial  law,  have  given  other  definitions  of  it, 
and  painted  it  in  far  blacker  colors  than  the  above.  Thus 
Mr.  Justice  Woodbury,  in  a  dissenting  opinion  in  a  case  to 
be  referred  to  soon,  speaks  of  it  in  this  manner  :  "  By  it  ev- 
ery citizen,  instead  of  reposing  under  known  and  fixed  laws 
as  to  his  liberty,  property,  and  life,  cxibts  with  a  rope 
around  his  neck,  subject  to  be  hung  up  by  a  military  despot 
at  the  next  lamp  post,  under  the  sentence  of  some  di'umhead 
court  martial."  But  such  language  is  a  mere  appeal  to  pre- 
judice, and  is  not  warranted  by  any  reason  or  authority.  It 
is  similar  in  spirit  to  that  once  used  by  the  English  Common 
Law  judges  in  reference  to  Equity,  when  this  was  described 
as  being  measured  by  the  length  of  the  chancellor's  foot. 

§  699.  Such  a  martial  law  as  that  above  defined,  has 
been  declared  by  a  solemn  judgment  of  the  Supreme  Court 
of  the  United  States  to  be  a  necessary  and  lawful  conse- 
quence of  a  state  of  actual  hostilities  in  this  country,  and  to 
be  a  protection  to  the  officers  executing  it,  from  the  penalties 
of  their  acts  winch  were  unwarranted  by  all  merely  civil 
rules  and  guarantees  of  personal  rights.  The  case  was  that 
of  Luther  vs.  Borden  (7  How.  E.  1),  which  arose  out  of  the 
rebellion  in  Rhode  Island  commonly  called  Dorr's  rebellion. 
The  contest  between  the  regular  government  and  the  revolu- 
tionary one  headed  by  Dorr  reached  a  point  wliere  active 
military  operations  took  place,  though  no  battles  were 
fought  or  lives  lost.  The  legislature  proclaimed  martial 
law  throughout  the  whole  State  The  defendant,  an  officer 
of  the  State  militia,  while  endeavoring  to  arrest  the  plaintiff, 
broke  into  and  searched  his  house  with  a  party  of  soldiers. 
The  action  was  brought  to  recover  damages  for  this  tres- 
pass. The  defendant  relied  upon  the  fact  that  his  Govern- 
ment was  legitimate,  and  tliat  he  acted  under  the  martial 
law,  and  was  therefore  protected.     It  appeared  in  evidence, 


THE   MARTIAL   LAW    CONSTITUTIONAL.  407 

or,  rather,  the  fact  was  offered  to  be  proven  bj  the  plaintiff, 
that  he  was  not  then  connected  with  the  insurgent  forces, 
and  that  there  were  no  such  forces  within  several  miles  of 
his  house.  The  case  was  most  elaborately  argued  by  distin- 
guished counsel.  It  was  claimed  on  behalf  of  the  plaintiff, 
that  the  insurgent  Government  was  legitimate,  but,  if  not, 
that  the  defendant  was  not  protected  by  the  martial  law, 
which  was  an  usurpation  of  authority  unknown  to  our  insti- 
tutions. Both  of  these  points  were  necessarily  contained  in 
the  case,  for  even  if  the  old  government  was  still  supreme, 
unless  the  martial  law  was  lawful,  the  act  of  the  defendant 
would  have  been  a  gross  violation  of  the  plaintiff's  rights. 
Tlie  Supreme  Court  of  the  United  States  decided  that  the 
action  could  not  be  maintained  ;  that,  as  the  Federal  admin- 
istration had  recognized  the  old  government  of  Rhode  Isl- 
and as  the  true  one,  the  courts  must  also  treat  it  as  such, 
and  that  the  existence  of  martial  law  was  a  full  protection 
to  the  defendant.  Chief  Justice  Taney,  in  delivering  the 
judgment  of  the  court,  after  asserting  that  the  State  might 
put  down  the  opposition  by  armed  force,  proceeds  :  "  And 
if  the  Government  of  Rhode  Island  deemed  the  armed  oppo- 
sition so  formidable  and  so  ramified  thronghout  the  State  as 
to  require  the  use  of  its  military  force,  and  the  declaration 
of  martial  law,  we  see  no  ground  upon  which  this  court  can 
question  its  authority.  It  was  a  state  of  war,  and  the  estab- 
lished government  resorted  to  the  rights  and  usages  of  war 
to  maintain  itself,  and  to  overcome  the  unlawful  opposition. 
And  in  that  state  of  things  the  oflScers  engaged  in  its  mili- 
tary service  might  lawfully  arrest  any  one,  who,  from  the 
information  before  them,  they  had  reasonable  grounds  to 
believe  was  engaged  in  the  insurrection,  and  might  order  a 
house  to  be  forcibly  entered  and  searched,  when  there  were 
reasonable  grounds  for  supposing  that  he  might  be  there 
concealed.  Without  the  power  to  do  this,  martial  law  and 
the  military  array  of  the  Government  would  be  a  mere  pa- 
rade, and  rather  encourage  attack  than  repel  it.     No  more 


408  PERSONS   AND   PERSONAL   RIGHTS. 

force,  however,  can  be  used  than  is  necessary  to  accomplish 
the  object.  And  if  the  power  is  exercised  for  tlie  purpose 
of  oppression,  or  any  injury  is  wilfully  done  to  person  or 
property,  the  party  by  whom  or  by  whose  order  it  is  com- 
mitted would  undoubtedly  be  answerable."  This  decision 
should  be  read  in  connection  with  the  dissenting  opinion  of 
Judge  "Woodbury,  for  often  the  full  force  and  scope  of  the 
judgment  of  a  court  is  best  ascertained  by  reference  to  the 
views  of  those  judges  who  differ  from  the  majority.  In  his 
opinion.  Judge  Woodbury  distinctly  admits  the  effects  of 
the  martial  law  to  be  subversive  of  the  common  course  of 
the  civil  law  and  of  personal  rights,  and  therefore  argues 
that  it  is  opposed  to  our  institutions,  and  cannot  exist  here. 
The  case,  however,  clearly  establishes  the  proposition  that 
martial  law,  in  this  country  as  well  as  in  others,  is  a  lawful 
and  necessary  adjunct  of  a  state  of  active  hostilities,  and  is 
therefore  impliedly  contained  in  the  war-making  grants  of 
the  Constitution.  I  have  dwelt  somewhat  at  large  on  this 
case,  because  it  is  of  binding  authority,  emanating  from 
that  high  tribunal  whose  special  function  it  is  to  deal  with 
constitutional  questions,  and  therefore  overinjles  and  nulli- 
fies the  two  or  three  contrary  decisions  of  State  courts  which 
deny  the  existence  of  martial  law. 

§  TOO.  (2.)  The  effects  of  martial  law  are  powerful  and 
far  reaching.  Taking  the  place  of  the  usual  methods  of  civil 
govermnent,  it  suspends  for  a  while  personal  rights,  so  as 
to  permit  and  require  arrests  and  detentions,  searches  and 
seizures,  trials  and  punishments,  of  a  kind  far  different  from 
those  employed  in  the  ordinary  course  of  justice.  This  is, 
in  fact,  the  very  gist  of  the  martial  law.  It  may  also  neces- 
sarily include  in  its  operation  the  suspension  of  the  writ 
of  habeas  corjpus,  and  of  all  other  judicial  remedies,  by  the 
very  force  of  its  own  existence.  Indeed,  the  superiority,  for 
a  time,  of  this  military  rule  over  the  civil  tribunals,  is  en- 
tirely incompatible  with  any  interference  from  the  latter  by 
means  of  th!>  writ  of  habeas  corpus.     Martial  law  could  not 


EFFECTS    OF   MAKTIAL   LAW.  409 

exist,  if  the  courts  had  still  tlie  power  to  review  every  act 
of  a  military  officer,  and  inquire  into  every  arrest  and  con- 
finement. It  therefore,  for  the  time  when,  and  at  the  place 
where  it  is  in  operation,  displaces  those  clauses  of  the  Consti- 
tution which  guarantee  the  personal  righ'ts  of  Kfe,  liberty, 
and  property.  Yet  it  is  not  entirely  arbitrary  ;  nor  is  it 
the  mere  unrestrained,  irresponsible  will  of  a  military  com- 
mander acting  without  rule  or  reason.  It  is  not  the  mere 
instrument  of  tyranny,  but  is  intended  to  be  the  means  of 
protection  and  safety  to  the  state,  because,  from  its  speedy, 
energetic,  peremptory  methods,  it  is  more  suited  to  the  exi- 
gencies of  the  times  than  the  more  dilatory  and  restrained 
procedure  of  peace.  Declamatory  writers  often  speak  of  it 
as  though  it  were  equally  lawful  by  the  martial  law  to  ar- 
est  and  punish  the  innocent  and  the  guilty,  to  wreak  per- 
sonal vengeance,  and  to  maintain  public  order  by  the  strong 
hand.  The  case  cited  above  shows,  however,  that  it  is 
placed  within  projjer  limits,  and  that,  when  a  military  com- 
mander transo;resses  these,  he  is  answerable  as  though  he 
were  acting  without  any  pretence  of  authority.  "  Founded 
upon  the  necessities  of  war,  and  limited  by  those  necessities, 
its  existence  does  not  necessarily  suspend  all  civil  proceed- 
ings. Contracts  may  still  be  made  and  be  valid,  as  long  as 
they  do  not  interfere  with  or  affect  military  operations.  A 
mere  trespass  by  A  on  the  lands  of  B,  unconnected  with 
any  military  service,  is  none  the  less  a  trespass,  and  does 
not  require  a  military  trial  or  condemnation.  The  courts 
are  not  necessarily  closed,  for  all  actions  relating  merely  to 
the  private  affairs  of  individuals  may  still  be  entertained, 
without  detriment  to  the  public  service ;  but  it  closes  the 
consideration  there  of  any  action,  suit,  or  proceeding  in 
which  the  civil  process  would  impair  '■he  efficiency  of  the 
military  force." 

§  701.  (3.)  Powerful  as  are  these  effects,  they  are  not  in 
derogation  of  the  Constitution,  for  that  would  make  them 
illegal,  and  the  very  gist  of  the  martial  law  is  that  it  legal- 


ilO  PEK80NS   ANT)   PERSONAL   EIGHTS. 

izes  these  acts  of  military  officers,  so  that  tliey  cannot  after- 
ward be  pmiislied  for  them,  or  pursued  in  damages.  The 
right  to  suspend  the  operation  of  these  constitutional  guar- 
antees, and  among  them  the  privilege  of  the  writ  of  habeas 
corpus,  is  contained  in  the  Constitution  as  an  incident  of  the 
state  of  war.  This  power  does  not  then  depend  for  its  effi- 
cacy upon  the  clause  directly  relating  to  the  habeas  corpus, 
which  simply  restricts  a  suspension  of  the  privilege  of  the 
writ  to  times  of  invasion  or  rebellion. 

Tlie  Constitution,  therefore,  although  it  denies  any  civil 
power  to  the  Government  to  interfere  with  the  safeguards 
of  personal  rights,  admits  a  belligerent  power  residing  in 
some  person  or  department,  insomuch  as  it  admits  war,  and 
with  it  the  occasional  existence  of  martial  law. 

As  the  power  then  exists,  I  inquire, 

§  702.  III.  When  may  the  power  exist,  or,  in  other 
words,  when  may  the  martial  law  be  resorted  to  within  the 
bounds  of  the  United  States  ? 

This  point  has  now  been  definitely  settled  by  judicial 
decision,  and  it  is  clear  that  the  military  rule  and  authority 
can  supersede  the  civil  functions  of  magistrates  only  when 
a  war  is  actually  raging  within  our  national  limits.  This 
can  only  happen  during  an  invasion  or  rebellion,  the  very 
times  to  which  the  suspension  of  the  privilege  of  the  writ  of 
habeas  corpus  is  confined  by  the  Constitution.  In  foreign 
wars,  when  troops  are  collected  at  home  and  sent  abroad  for 
active  service,  there  would  be  no  occasion  for  martial  law 
and  its  incidents  within  any  portion  of  the  United  States ; 
although  in  the  countries  which  our  armies  should  occupy, 
it  would  naturally  and  perhaps  necessarily  be  put  in  operas 
tion  by  om*  commanders.  Thus,  during  the  invasion  of 
Mexico,  many  of  the  acts  of  generals,  in  organizing  tempo- 
rary governments  and  preserving  order,  must  be  referred 
entirely  to  the  prevalence  and  authority  of  martial  law. 

§  Y03.  IV.  By  whom  can  the  power  be  exercised,  that 
is,  by  which  department  of  the  Government  can  the  irartial 


WHO   MAY    DECLARE   MAKTIAL   LAW. 


411 


law,  with  its  necessary  incidents,  be  put  into  operation  ? 
My  answer  and  proposition  is,  by  the  President  alone  as 
commander-in-chief  of  the  army  and  navy,  directly,  or 
through  his  subordinate  officers. 

§  704.  1.  Wherever  else  this  authority  may  be  lodged, 
it  plainly  does  not  belong  to  the  judiciary.  Their  functions 
are  clearly  defined ;  their  jurisdiction  is  known  and  settled  ; 
they  have  nothing  to  do  with  war ;  in  fact,  the  great  effect 
of  martial  law  is  to  disturb  them  for  a  while  in  the  dis- 
charge of  their  duties. 

§  705.  2.  Nor  does  it  belong  to  the  National  Legislature. 
To  make  this  clear,  we  must  look  somewhat  carefully  to  the 
delegated  powers  of  Congress.  .  These  are  entirely  legisla- 
tive, and  all  directly  legislative  fimctions  are  centred  in 
this  body.  It  cannot  interpret  laws,  or  apply  them  to  par- 
ticular individuals,  for  that  duty  belongs  to  the  courts  ;  nor 
execute  and  enforce  them,  for  that  belongs  to  the  President ; 
but  it  may  make  and  repeal  them,  so  far,  and  so  far  only,  as 
it  is  authorized  by  the  Constitution.  If  setting  the  martial 
law  in  motion  is  made  a  legislative  act  by  the  Constitution, 
then  it  belongs  to  Congress  to  inaugurate  it.  It  is  certainly 
beyond  the  power  of  Congress  or  any  other  legislature  to  en- 
act the  several  rules  and  regulations  of  which  the  martial  law 
is  composed,  for  this  military  rule  and  authority  is  not  sus- 
ceptible of  being  reduced  to  fixed  and  precise  statements ;  the 
moment  this  was  done,  it  would  no  longer  be  martial  law,  but 
would  become  a  part  of  the  ordinary  civil  law  of  the  nation. 

§  706.  The  powers  of  Congress  in  regard  to  war  are 
great  in  themselves,  but  they  are  few.  This  body  alone 
may  declare  war ;  make  rules  concerning  captures ;  raise 
and  support  armies  and  navies ;  make  rules  for  the  govern- 
ment of  land  and  naval  forces,  as  well  in  peace  as  war ;  pro- 
vide for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections  and  repel  invasions  ;  and  per- 
haps suspend  the  writ  of  haheas  corpus  in  certain  cases. 
Their  authority  is  then  fundamental,  and  all  warlike  fi.nc- 


412  PERSONS   AND   PERSONAL   FJGnTS. 

tions  of  the  executive  are  predicated  upon  its  having  been 
exerted.  The  President  can  do  nothing  in  relation  to  a  war, 
to  an  army  or  navy,  until  Congress  has  spoken.  They  have 
complete  control  of  the  purse,  and  alone  can  commence  a 
war.  They  alone  can  organize  the  regular  or  volunteer  land 
and  naval  forces,  either  for  hostilities  at  home  or  abroad, 
and  they  alone  can  provide  for  calling  out  the  militia  for 
home  service.  To  them  belongs  the  raising  and  appropria- 
tion of  money  for  the  pay  of  the  army,  for  the  purchase  of 
supplies  and  armaments,  for  the  construction  of  fortifica- 
tions. They  may  prescribe  the  rules  and  regulations  for 
the  internal  government  of  the  army  and  navy,  and  for  the 
disposition  of  captm'es.  But  they  cannot  directly  put  an 
end  to  a  war,  for  that  belongs  to  the  treaty-making  power  ; 
they  can  only  indirectly  interfere  and  compel  a  stoppage  of 
hostilities  by  withholding  supplies.  After  setting  a  war  in 
motion  tliey  have  no  direct  control  of  it,  and  no  control 
whatever,  except  as  they  may  grant  or  refuse  that  material 
aid  of  men,  money,  and  arms,  which  is  necessary  for  its  ac- 
complishment, and  thus  force  the  executive  to  their  wishes. 
Tliis  great  constitutional  power  of  Congress  over  the  purse 
in  war  is  one  of  the  cherished  principles  borrowed  by  us 
from  England,  which  was  battled  for  there  in  long  and 
bloody  contests,  and  which  is  the  effective  check  in  the 
hands  of  the  nation  upon  the  centralized  power  of  the 
Crown.  This  is  the  extent  of  the  legislative  powers  con- 
ferred by  our  Constitution,  and  with  the  exceptions  of  inau- 
gurating a  state  of  hostilities,  and  disposing  of  captures,  and 
perhaps  suspending  the  writ  of  habeas  corpus^  their  functions 
in  time  of  war  and  in  time  of  peace  are  exactly  the  same. 
War  brings  7io  material  addition  to  the  authority  which  they 
enjoy  in  seasons  of  quiet  and  order. 

§  707.  On  this  subject  there  has  been  and  is  much  mis- 
conception, even  among  those  who  are  considered  as  states- 
men, certainly  among  many  public  M-riters  and  members  of 
the  Federal  Legislature  itself.     Much  has  been  said  even  on 


THE   POWER   BELONGS    TO    THE    PRESIDENT.  413 

the  fiocr  of  either  House,  of  the  belligereiit  powers  of  Con- 
gress to  pass  various  statutes,  and  committees  "  on  the  con- 
duct of  the  war  "  have  been  active  in  their  self-imposed  du- 
ties. Two  statutes  or  classes  of  statutes  alone  can  rightfully 
be  enacted  by  Congress  in  war,  which  are  beyond  their  juris- 
diction in  peace  ;  the  one,  perhaps,  to  suspend  the  writ  of 
habeas  corpus  j  the  other,  certainly,  to  make  dispositions 
of  captures.  All  other  powers  belong  to  and  are  constant- 
ly exercised  in  tlie  ordinary  routine  of  legislative  duties. 
Committees  "  on  the  conduct  of  the  war  "  may  be  useful  in 
collecting  materials  for  future  histories,  but,  as  legislative 
agents,  they  are  merely  voluntary,  and  cannot  carry  their 
interference  farther  than  a  recommendation. 

§  Y08.  3.  The  power  in  question  belongs  to  the  Presi- 
dent of  the  United  States,  as  commander-in-chief.  When  a 
war  has  been  declared  by  Congress,  and  an  army  and  navy 
raised,  the  President,  as  commander-in-chief,  has  entire  con- 
trol of  military  operations,  untrammelled  by  any  other  de- 
partment. By  designating  him  to  this  high  station,  the  Con- 
stitution has  clothed  him  with  great  and  undivided  powers. 
If  the  legislature  can  interfere  and  dictate  to  him  a  line  of 
military  action,  or  order  and  compel  any  military  measure, 
they^  and  not  he,  would  be  commander-in-c/^^V^.  But  it  was 
to  escape  the  certain  disastrous  result  of  such  a  disposition  of 
power,  that  the  command  was  intrusted  to  a  single  head ;  for 
better  one  poor  general  even,  than  many  good  ones.  As  the 
chief  magistrate,  then,  derives  his  authority  fi'om  the  Consti- 
tution alone,  and  as  that  authority  is  sufficient,  any  attempt 
on  the  part  of  the  legislature  to  add  to  it  would  be  at  once 
useless  and  nugatory.  He,  aud  not  Congress,  has  exclusive 
right  to  order  what  marches,  sieges,  battles,  blockades,  cam- 
paigns, shall  be  made.  Any  attempt  of  Congress  to  inter- 
fere witli  the  management  of  the  army  and  the  course  of 
hostilities,  would  be  a  direct  infringement  of  tlie  rights  of 
the  commander-in-chief,  and  an  unconstitutional  assumption 
of  power.     They  can  do  little  in  war  which  they  cannot  do 


414  PERSONS    AND    PERSONAL   EIGHTS. 

in  peace.  The  President  alone  receives  an  increase  of  power 
from  a  state  of  war.  Then  his  peculiar  functions  as  com- 
mauder-in-cliief  are  called  into  active  play,  and  are  com- 
mensurate Avith  the  necessities  of  the  hostilities.  It  should 
be  remembered  that  the  President  of  the  United  States 
bears  a  double  official  character.  By  the  one,  he  is  the  civil 
head  of  the  nation,  charged  M'ith  the  duty  of  executing  the 
laws  at  all  times,  and  in  this  capacity  his  powers  are  ever 
the  same  in  peace  and  in  war.  By  the  other,  he  is  the  su- 
preme head  of  the  military  forces,  and  charged  with  the 
duty  of  directing  these  forces  as  occasion  may  require.  In 
peace,  this  duty  is  simple,  and  is  confined  on  land  to  the 
gai-risoning  of  forts,  and  the  stationing  of  troops  on  the 
frontiers  ;  at  sea,  to  the  ordering  of  ships  and  squadrons  to 
cruise  in  different  parts  of  the  world.  But  in  war,  these 
somewhat  contracted  duties  at  once  increase  to  enormous 
proportions,  and  the  safety  of  the  whole  country  may  de- 
pend upon  the  energy,  firmness,  and  ability  of  one  man. 

§  709.  It  is  easy  to  declaim  against  the  policy  of  intrust- 
ing so  much  power  to  a  single  official,  and  to  predict'  ruin 
to  the  state  £t*om  its  unscrupulous  use,  but  the  Constitution 
has  so  ordered,  and  there  is  no  escape  from  it.  And  the 
universal  experience  of  nations  testifies  that  this  arrange- 
ment is  not  only  the  best,  but  that  it  is  necessary.  The 
evils  to  be  apprehended  from  the  grant  of  supreme  military 
authority  to  one  person,  are  slight  when  compared  with  the 
disasters  certain  to  result  from  the  sharing  it  among  several, 
and  particularly  from  its  commitment  to  a  large  deliberative 
assembly.  But  there,  is  really  no  danger,  for  the  English 
and  American  Constitutions  both  furnish  to  the  people  a 
perfect  check  against  the  ambition,  the  rashness,  or  the 
weakness  of  the  executive.  Their  representatives  in  Parlia- 
ment or  Congress  can  curb  or  give  the  rein  to  the  Crown 
or  to  the  President  at  pleasure,  for  they  control  the  sinews 
of  war ;  not  a  cent  can  be  expended,  not  a  soldier  enlisted, 
without  their  approval.     Tliey  may  grant  or  withhold,  and 


THE  EXTENT  OF  THIS  POWER.  415 

king  and  president  are  at  their  mercy.  It  is  thus  that  our 
organic  law,  borrowed  in  idea  and' principle  from  the  Eng- 
lish, has  contrived  these  well-poised  balances,  so  that  the 
various  departments  shall  work  harmoniously,  and  neither 
ran  rush  on  unimpeded  by  the  other. 

§  710.  Now  the  establishment  of  martial  law  in  any 
place  or  district  is  not  a  legislative  act,  any  more  than  the 
march  of  an  army,  the  siege  of  a  fortress,  or  the  blockade  of 
a  coast.  It  is  as  direct  and  necessary  a  consequence  of  mili- 
tary movements,  as  the  occupation  of  private  grounds  for  a 
march,  a  bivouac,  or  a  battle.  The  absurdity  of  Congress 
assuming  by  statute  to  clothe  the  President  and  his  subor- 
dinate officers  with  authority  to  move  their  troops  over  the 
fields  and  farms  of  the  citizens  on  their  marches  and  in 
making  dispositions  for  battle,  and  to  take  possession  of  pri- 
vate houses  for  the  wounded,  would  be  patent ;  but  the  ab- 
surdity is  equally  great  of  supposing  that  Congress  can  au- 
thorize any  other  purely  warlike  measure  in  the  progress  of 
active  hostilities.  As  the  commander-in-chief  has  entire 
and  supreme  control  over  military  operations,  and  as  the 
martial  law  is  only  an  incident  of  these  operations,  to  be 
called  into  effect  according  to  the  exigencies  of  the  contest, 
not  as  a  permanent  thing,  nor  universal,  nor  necessarily 
confined  to  one  locality,  but  temj)orary  and  varying,  it  is  an 
irresistible  conclusion  that  the  power  to  invoke  the  aid  of 
this  law  resides  alone  with  him,  and  does  not  belong  to  Con- 
gress. A  statute  of  theirs  that  the  martial  law  should  exist 
in  such  a  city  or  district,  would  be  as  nugatory  as  a  legis- 
lative order  that  such  a  fortress  should  be  besieged,  or 
march  made,  or  battle  fought.  Congress  alone  provides  the 
means  to  caiTy  on  war ;  the  commander-in-chief  alone  de- 
termines how  to  use  them,  and  one  method  of  using  them  is 
to  resort  to  the  martial  law. 

§  711.  Y.  What  is  the  extent  of  this  power  in  the  Presi- 
dent ;  or,  in  other  words,  where,  in  what  places,  within 
what  limits,  may  he  put  the  martial  law  into  operation,  and 


416  PERSONS   AND   PERSONAL   RIGHTS. 

thus  emporarily  set  aside  the  ordinary  guarantees  of  the 
Constitution  ? 

A  solemn  judgment  of  the  Supreme  Court  in  Ex  parte 
Milligan,  4  Wallace's  R.  2,  127,  a  case  growing  out  of  the 
civil  war,  has  settled  this  question,  and  has  denied  the 
lawfulness  of  martial  law  within  the  United  States,  ex- 
cept in  districts  actually  occupied  by  the  opposing  forces, 
wliich  are  the  very  theatre  of  hostilities,  and  iu  which  the 
civil  courts  are,  for  the  time  being,  completely  displaced. 
"It  follows  from  what  has  been  said  on  this  subject,  that 
there  are  occasions  when  martial  rule  can  properly  be  ap- 
plied. If,  in  foreign  invasion  or  civil  war,  the  courts  are  act- 
ually closed,  and  it  is  impossible  to  administer  criminal  jus- 
tice according  to  law,  then,  on  the  theatre  of  active  military 
operations,  where  war  really  prevails,  there  is  a  necessity 
to  furnish  a  substitute  for  the  civil  authority  thus  over- 
thrown, to  preserve  the  safety  of  the  army  and  society; 
and  as  no  power  is  left  but  the  military,  it  is  allowed  to 
govern  by  martial  rule  until  the  laws  can  have  their  free 
course.  As  necessity  creates  the  rule,  so  it  limits  its 
duration;  for  if  this  government  is  continued  after  the 
courts  are  reinstated,  it  is  a  gross  usurpation  of  power. 
Martial  rule  can  never  exist  where  the  courts  are  open 
and  in  the  proper  and  unobstructed  exercise  of  their  juris- 
diction." 

§  712.  These  sweeping  conclusions  of  the  Supreme 
Court  seem  to  be  open  to  some  criticism.  The  opinion 
quoted  seems  to  have  confounded  martial  law  with  mili- 
tary government,  and  to  have  overlooked  the  fact  that 
martial  law  is  not  in  any  true  sense  a  judicial  proceeding, 
nor  a  means  of  executing  the  civil  laws,  but  is  a  mode  of 
waging  war.  The  court  is  clearly  correct  in  holding  that 
neither  the  President  nor  Congress  can  proclaim  martial 
law,  and  make  it  general  in  districts  where  the  courts  are 
open  and  unobstructed.     But  the  President,  as  Commander 


WHERE   MARTIAL   LAW   MAY    EXIST.  417 

in  Chief,  wages  war;  the  sole  object  of  his  hostile  endeav- 
ors is  success.  In  some  of  his  operations  he  is  certainly 
untrammeled  by  the  Bill  of  Rights.  In  an  internal  war  of 
rebellion  the  enemies  are  citizens  and  traitors,  and  thus 
guilty  of  civil  offenses;  but  he  may  kill  or  capture  them,  or 
seize  and  destroy  their  property,  and  thus  break  up  their 
armed  opposition.  The  possibility  of  civil  war  therefore 
demands  at  least  one  implied  exception  to  the  general 
clauses  of  the  first  eight  amendments.  May  it  not  admit 
of  others  ?  One  other  is  universally  conceded.  A  citizen 
civilian,  in  no  way  connected  with  the  hostile  array  as  a 
belligerent,  who  should  act  as  a  spy  upon  the  military 
movements,  operations,  and  preparations,  may  be  seized, 
tried,  and  punished  by  military  agents.  The  explanation 
of  this  case  is  simple  and  plain.  A  spy  interferes  directly 
with  the  process  of  waging  war;  he  perils  the  success  of 
extensive  campaigns;  he  renders  the  final  result  of  the 
struggle  doubtful;  he  is  in  fact  acting  as  an  enemy,  may  be 
treated  as  an  enemy,  and  as  an  enemy  forfeits  all  civil  pro- 
tection, even  though  his  ofiense  might  also  be  considered 
as  treason. 

§  713.  This  illustration  may,  perhaps,  serve  to  indicate 
the  occasions  upon  which  alone  the  President  may  resort  to 
martial  law,  and  the  limits  upon  its  exercise  by  him. 
Whenever  a  civilian  citizen  or  alien  is  engaged  in  practices 
which  directly  interfere  with  waging  war,  which  directly 
affect  military  movements  and  operations,  and  thus  directly 
tend  to  hinder  or  destroy  their  successful  result,  and  when, 
therefore  these  practices  are  something  more  than  mere 
seditious  or  traitorous  designs  or  attempts  against  the  ex- 
isting^ civil  e'overnment,  the  President  as  Commander  in 
Chief  may  treat  this  person  as  an  enemy,  and  cause  him  to 
be  arrested,  tried,  and  punished  in  a  military  manner,  al- 
though the  civil  courts  are  open,  and  although  his  offense 
27 


418  PERSONS   AND   PERSONAL   RIGHTS. 

may  be  sedition  or  treason,  or  perhaps  may  not  be  re- 
cognized as  a  crime  by  the  civil  code.  The  criterion 
thus  suggested  confines  the  operation  of  martial  law 
within  the  very  narrowest  limits.  The  military  jurisdic- 
tion allowed  by  the  Supreme  Court  is  more  extensive,  but 
is  in  fact  the  "military  government"  by  which  subjugated 
districts  must  for  a  while  be  controlled,  until  the  civil 
rule  is  re-established. 

§  714.  If  these  views  are  correct,  it  follows  that  the 
legality  of  every  military  arrest,  trial,  and  punishment 
must  be  determined  upon  its  own  circumstances,  and  not 
according  to  any  general  and  inflexible  rules.  In  fact, 
these  proceedings  would  be  placed  upon  exactly  the  same 
footing  as  those  other  apparent  breaches  of  the  Bill  of 
Rights  which  consist  in  destroying  the  private  property  of 
civilians,  or  appropriating  it  to  public  use,  when  military 
exigencies  demand  such  measures. 

§  715.  It  should  be  borne  in  mind,  and  I  repeat  the 
proposition,  that  the  martial  law  is  not  an  irresponsible, 
arbitrary  rule  and  authority,  lodged  in  the  commauder-in- 
chief,  or  in  his  subordinates  ;  that  it  gives  no  power  to  ar- 
rest, try,  and  punish  without  cause,  or  in  an  oppressive  man- 
ner, but  that  the  officers  who  exercise  and  enforce  it  are 
amenable  to  the  civil  courts  for  its  abuse.  Thus,  while  the 
martial  law  is  recognized  by  the  Constitution  as  a  peculiar 
portion  of  our  most  general  municipal  law,  it  is  still  in  a 
measure  kept  in  subjection  to  those  ordinary  tribunals  which 
are  constituted  as  the  administrators  of  justice,  and  the  con- 
cervators  of  peace. 

§  716.  From  the  foregoing  discussion  I  think  the  follow- 
ing conclusions  may  be  drawn  :  That  no  civil  power  resides 
iu  any  department  of  the  Government  to  interfere  with  the 
fundamental,  personal  rights  of  life,  liberty,  and  property, 
guaranteed  by  the  Constitution ;  That  a  warlike  power  is 
given  by  the  Constitution  to  the  President  temporarily  to 
disregard  these  rights  by  means  of  the  martial  law ;  That 


OF   CITIZENS.  419 

under  the  sanction  of  this  species  of  law,  the  President  and 
his  subordinate  military  officers  may,  within  reasonable  lim- 
its, suspend  the  privilege  of  the  writ  oi  habeas  corpus^  cause 
arrests  to  be  made,  trials  and  condemnations  to  be  had,  and 
punishments  to  be  inflicted,  in  methods  unknown  to  the  civil 
procedure,  but  are  responsible  for  an  abuse  of  the  power ; 
And  that  the  martial  law,  as  a  necessary  adjunct  of  military 
movements,  may  be  enforced  in  time  of  invasion  or  rebel- 
lion, wherever  the  influence  and  efi'ect  of  these  movements 
directly  extends. 

n. 

OF   CITIZENS   OF   THE   UNITED   STATES,   OR   OP  A  PARTICULAR   STATE, 
AND   OP  THEIR  PECULIAR  RIGHTS   AS   SUCH. 

§  717.  The  rights  described  in  the  preceding  subdivision 
belong  to  all  free  persons  within  the  United  States,  whether 
permanent  residents,  or  temporary  sojourners.  The  num- 
ber of  individuals  embraced  in  the  present  class  is  more 
limited,  and  they  possess,  in  addition  to  the  general  rights 
already  noticed,  certain  other  privileges  which  appertain  to 
them  as  citizens  of  the  nation,  or  of  the  various  States  of 
which  the  nation  is  composed.  These  immunities  may  be 
summed  up  in  the  fact  of  political  protection,  as  distinguished 
from  the  simple  personal  protection  which  is  the  result  of  the 
more  general  rights  of  life,  liberty,  property,  and  religion. 

§  718.  Every  nation  possesses  the  power  of  determining 
w^ho  shall  be  its  citizens.  By  the  common  law  of  England, 
which  is  in  force  in  this  country,  and  which  may  be  assumed 
as  also  the  law  of  all  the  European  states,  persons  within 
the  jurisdiction  of  the  government,  or  limits  of  the  terri- 
tory, are  either  natives,  or  aliens.  Natives  are  those  born 
within  the  national  jurisdiction ;  aliens  are  born  without 
that  jurisdiction.  The  exception  to  this  almost  universal 
rule,  are  the  foreign-born  children  of  ambassadors,  who  are 
assumed  to  carry  with  them  the  jurisdiction  of  the  nation 
which  they  represent. 


i20  PEK80NS   AND    TEKSONAL   EIGHTS. 

§  719.  As  a  general  principle  of  the  English  and  Ameri- 
can law,  all  native-born,  free  persons,  of  whatever  age,  sex, 
and  parentage,  are  citizens.  The  United  States  Constitu- 
tion and  Government  may  limit,  and  have  limited,  this  doc- 
trine, and  estahhshed  exceptions  to  it.  One  exception  cer- 
tainly includes  the  Indians  scattered  through  the  country, 
who,  although  born  on  the  soil  and  protected  by  the  laws, 
occupy  an  anomalous  position,  being  neither  citizens,  nor 
entirely  foreigners,  but  more  resembling  the  condition  of 
foreign  nations  within  our  limits  ;  foreign  to  the  extent  that 
treaties  are  made  with  them  by  the  General  Government, 
and  yet  domestic  subjects,  to  the  extent  that  they  perma- 
nently reside  within  the  limits  of  a  State,  own  landed  and 
other  property,  and  are  protected  by  the  laws,  and  owe  to 
them  obedience. 

§  720.  The  Supreme  Court  of  the  United  States,  in  the 
case  of  Dred  Scott,  decided  that  free  negroes,  although  born 
within  the  jurisdiction,  are  not  citizens  of  the  United  States. 
The  extent  to  which  this  decision  went  was  simply  this,  that 
a  free  negro  cannot  as  a  citizen  bring  a  suit  in  the  Federal 
courts.  Since  that  case,  however,  the  executive  department 
of  the  General  Government  has  formally  declared  that  it 
recognizes  the  citizenship  of  this  class  of  persons,  so  far  as 
to  allow  them  the  privileges  which  that  department  is  bound 
to  maintain,  such  as  granting  to  them  passports,  protecting 
them  when  abroad,  and  permitting  them  to  avail  themselves 
of  the  provisions  of  the  navigation  laws,  which  prescribe  that 
tlie  owners  and  masters  of  certain  vessels  trading  in  the  ports 
of  the  United  StateSj  shall  be  citizens.  There  is  at  present 
then  a  conflict  between  the  action  of  the  judiciary  and  that 
of  the  executive. 

§  721.  Under  the  Constitution,  the  Federal  Congress  has 
the  power  to  declare  what  persons,  in  addition  to  those 
native  born,  shall  be  admitted  to  the  rights  of  citizenship. 
This  power  has  been  exercised  in  providing  that  the  foreign 
born  children  of  citizen  parents,  shall  themselves  possess 


NATTJKALIZATION   OF   FOKEIGNERS.  421 

this  status.  In  addition  to  this  limited  extension  of  the 
right  to  persons  of  foreign  birth,  it  has  always  been  the 
policy  of  our  Government,  National  and  State,  to  open  wide 
the  door  to  aliens  who  may  wish  to  avail  themselves  of  the 
privileges  of  citizenship.  This  has  been  done  by  the  natu- 
ralization laws,  which  prescribe  the  method  by  which  a  for- 
eigner, being  a  free  white  person,  removing  his  permanent 
residence  to  this  country,  may  throw  off  the  allegiance  of 
his  birth,  and  assume  that  of  the  United  States.  The  gen- 
eral provisions  of  these  laws  are,  that  the  alien,  at  least  two 
years  before  his  application  to  be  admitted  as  a  citizen,  shall 
make  oath  before  a  State  com't  of  record,  or  before  one  of 
the  Federal  courts,  or  before  the  clerk  of  these  courts,  that 
it  is  his  intention  to  become  a  citizen,  and  to  renounce  his 
allegiance  to  his  own  Government.  At  the  time  of  his  ac- 
tual admission,  he  must  appear  before  one  of  these  courts 
and  take  an  oath  to  support  the  Constitution  of  the  United 
States,  and  must  renounce  and  abjure  the  allegiance  of  his 
birth,  and  also  prove  to  the  court  by  witnesses  that  he 
has  resided  continuously  for  at  least  the  five  years  pre- 
ceding in  the  United  States,  and  at  least  one  year  in  the 
State  where  the  court  is  held,  and  that  he  is  a  person  of 
good  moral  character,  attached  to  the  j^rinciples  of  the 
Constitution  of  the  United  States,  and  well  disposed  to  the 
good  order  and  happiness  of  the  same.  This  done,  he  is 
pronounced  by  the  court  to  be  a  citizen  of  the  United 
States,  and  as  such  is  entitled  to  all  the  general  rights  and 
immunities  which  belong  to  natives.  The  minor  children 
of  naturalized  persons,  if  dwelling  in  the  United  States,  are 
included  in  the  parents'  change  of  status.  Persons  who 
came  to  this  country  minors,  and  have  resided  in  it  for 
three  years  continuously  before  coming  of  age,  and  two  years 
next  after  that  period,  may  be  admitted  without  the  previous 
declaration  of  intention. 

§  722.  In  the  status  of  citizenship  of  the  United  States 
are  included,  then,  all  free  native-born  persons  except  In 


422  PERSONS   AND   PERSONAIi    RIGHTS. 

dians,  aud  i:)erhaps  negroes  ;  foreign-horn  children  of  citizen 
l^arents ;  foreign-born  persons  who  have  been  naturalized 
according  to  the  laws  of  the  United  States,  and  the  minor 
children  of  such  naturalized  persons. 

§  723.  It  will  be  noticed  that  the  naturalization  laws  are 
limited  in  their  operation  to  fi*ee  white  foi-eigners.  How 
far  this  exclusion  extends  has  never  been  definitely  deter- 
mined ;  it  of  course  covers  negroes,  and  was  doubtless  di- 
rected especially  against  them.  It  will  probably  be  con- 
strued to  embrace  all  races  except  those  which  are  nearly 
afliliated  to  our  own  stock.  History  shows  that  such  related 
races  may  mingle,  and  have  coalesced  to  form  the  most 
united  peoples  and  most  powerful  empires ;  but  it  has  as 
plainly  demonstrated  that  races  entirely  dissimilar  cannot 
unite  and  attain  to  that  homogeneity  necessary  for  a  single 
people  and  stable  government.  Thus  the  Saxons  and 
Northmen  in  England,  the  various  German  tribes  and  Lat- 
ins in  France,  Italy,  and  Spain,  have  become  assimilated  so 
as  to  produce  compact  nationalities.  The  different  tribal 
elements  of  the  English  or  the  French  still  retain  many  of 
their  original  characteristics,  which  are  doubtless  inefface- 
able, but  not  sufficient  to  prevent  a  general  reduction  to  one 
national  life.  It  may  be  that  the  English  and  some  portions 
of  the  East  Indian  peoples,  will  in  time  become  thoroughly 
amalgamated,  for  they  both  belong  to  the  same  Indo-Ger- 
manic  stock.  But  if  we  may  trust  at  all  to  historical  con- 
clusions, no  length  of  common  intercourse  would  ever  re- 
duce the  English,  or  French,  or  Germans,  and  the  Africans, 
or  Chinese,  or  Polynesians,  to  one  homogeneous  people. 
Mingling  as  they  have  for  generations  with  the  whites,  and 
impressed  by  their  civilization,  and  adopting  some  of  their 
customs,  the  Indians  through  the  United  States,  even  in  the 
most  favorable  circumstances,  are  as  completely  Indian  in 
xhi'AT  ethnic  pecnliarities,  as  when  the  first  Europeans  land- 
ed on  the  American  shores.  These  considerations  furnish 
strong,  nay,  irresistible  reasons,  for  such  a  construction  of 


PECULIAR   EIGHTS    OF   CITIZENS.  423 

our  laws  in  reference  to  the  naturalization  of  foreigners,  as 
will  establish  and  maintain  the  policy  of  admitting  none  to 
the  status  of  citizenship  except  individuals  from  races  nearly 
aflSliated  to  our  own  national  Germanic  stock.  This  would 
cut  off  Africans,  most  Asiatics,  the  nations  of  the  Pacific 
and  East  India  islands,  and  probably  the  Sclavic  races  of 
Eastern  Em*ope.  I  think  experience  has  shown  that  these 
latter  races  are  so  different  from  the  Germanic,  in  the  ethnic 
life  and  force,  that  they,  like  the  Celtic,  can  form  no  com- 
plete national  union  with  peoples  descended  from  the  Ger- 
man stock. 

§  724.  The  various  States  of  the  Union  may  adopt,  and 
many  of  them  have  prescribed,  different  rules  for  the  admis- 
sion of  persons  to  the  rights  of  their  own  citizenship  ;  for  the 
citizenship  of  a  State,  and  that  of  the  United  States,  are  not 
convertible  conditions.  The  citizenship  of  a  State  confers 
its  own  privileges  within  the  limits  of  that  single  common- 
wealth ;  the  status  of  citizen  of  the  United  States,  is  coex- 
tensive with  the  jm^isdiction  of  the  nation.  What  consti- 
tutes citizens  of  the  various  States,  I  will  not  attempt  to  ex- 
plain in  particular.  In  some,  foreigners  are  admitted  after 
a  short  residence  ;  in  others,  they  are  more  restrained.  In 
some,  all  negroes  are  entirely  excluded ;  in  others,  they  are 
all  admitted. 

§  725.  Having  thus  described  what  classes  of  persons 
are  citizens,  I  will  next  state  some  of  the  rights  which  they 
enjoy,  in  addition  to  those  which  are  guaranteed  to  them  in 
common  with  aU  other  persons.  One  of  the  most  important 
of  these  is  the  unlimited  right  to  hold  and  enjoy  property. 
Of  course  this  right  is  controlled  in  each  State  by  the  local 
laws,  and  not  by  those  of  the  United  States.  What  persons 
may  hold  property  in  any  particular  State  depends  entirely 
upon  the  legislation  of  that  commonwealth.  By  the  com- 
mon law  of  England,  an  alien  could  not  hold  and  fully  enjoy 
landed  property.  This  rule  is  also  in  force  in  the  States  of 
the  Union,  except  where  it  has  been  altered  by  statute.     In 


424  PERSONS    AND    PERSONAL   EIGHTS. 

ireiieral  oiilv  the  citizens  of  a  State,  whether  native  or  natu- 
ralizec],  may  acquire  and  fully  hold,  convey,  devi&e,  aid  in- 
herit real  estate.  Some  of  the  States  have  abated  the  rigor 
of  this  rule,  and  extended  the  privilege  to  those  intend.ng  to 
become  citizens.  Special  legislation  has  also  often  been  had, 
permitting  pai'ticular  aliens  to  acquire  and  own  real  estate 
as  though  they  were  citizens.  Personal  property  is  not  so 
restricted,  but  may  be  acquii'cd,  enjoyed,  and  disposed  of  in 
any  manner  by  citizens  and  aliens  with  equal  facility.  This 
rule  is  a  relic  of  the  feudal  policy,  which  stamped  so  deep 
and  enduring  marks  of  difference  upon  lands  and  movables. 
§  720.  Tlie  citizen  of  the  United  States  as  such  has  the 
right  to  the  protection  of  his  Government  at  home  and 
abroad.  This  protection  over  him  when  abroad,  does  not 
extend  to  shielding  him  from  the  just  consequences  of  his 
crimes  and  violations  of  law  in  foreign  countries  ;  but  it  fol- 
lows liim  wherever  he  goes  as  a  peaceful  traveller  or  trader, 
and  interposes  in  his  behalf  whenever  he  is  oppressed  or  his 
rights  of  liberty,  security,  or  property  are  unjustly  invaded 
by  a  foreign  government.  The  extent  to  which  this  rule  is 
carried  will  be  best  illustrated  by  a  few  examples.  If  the 
property  of  a  citizen  of  the  United  States  peacefully  trading 
in  another  country,  should  be  seized,  or  confiscated,  or  de- 
stroyed by  the  foreign  officials,  in  a  case  where  he  had  not 
made  himself  amenable  to  their  laws,  so  that  the  seizure  was 
a  legal  method  of  punishment,  the  United  States  would  de- 
mand from  the  foreign  government  that  reparation  should 
be  made  for  the  losses  sustained  by  its  citizen,  and  would 
esteem  a  refusal  a  just  cause  of  declaring  war.  On  the 
other  hand,  if  such  seizure  were  made  while  the  citizen  was 
engaged  in  violating  some  one  of  the  laws  of  the  foreign 
nation,  as  if  he  were  attempting  to  evade  a  blockade,  the 
citizen  would  be  obliged  to  bear  his  own  loss.  This  is  the 
law  not  only  of  the  United  States,  but  is  a  part  of  the  gen- 
eral code  of  principles  by  which  nations  regulate  their  inter- 
course.    In  many  of  the  European  states,  all  or  nearly  all 


OF   THE   ELECTORS.  426 

classes  of  subjects  are  liable  to  serve  in  the  army  for  a  cer- 
tain number  of  years.  Instances  have  occurred  where  such 
foreigners,  immigrating  to  the  United  States,  and  becom- 
ing naturalized,  have  temporarily  returned  to  their  native 
country  and  been  drafted  into  the  army  and  compelled  to 
Berve  as  soldiers.  Whenever  our  Government  has  been  ap- 
prised of  such  cases,  it  has  interposed  and  hisisted  on  the  re- 
lease of  its  citizen.  Of  course,  the  only  method  of  compel- 
ling respect  to  the  rights  of  its  citizens  when  abroad,  after 
negotiations  have  failed,  is  by  a  resort  to  war. 

§  727.  Certain  particular  privileges  are  also  given  to 
citizens  of  the  United  States  by  statutes  of  the  Federal 
Congress,  but  it  is  unnecessary  to  enumerate  them  ;  among 
them  is  the  exclusive  right  to  carry  on  the  coasting  trade 
among  the  ports  of  the  United  States. 

The  right  of  citizenship  must  not  be  confounded  with  the 
right  of  suffrage,  and  of  taking  part  in  the  administration 
of  the  Government.  This  is  a  special  privilege  confined  to 
a  comparatively  small  class,  which  is  described  in  the  fol- 
lowing subdivision. 

m. 

OP  THOSE  PEKS0N8  TO  WHOM   THE   POLITICAI,   POWER   OP   THE   UtaTED 
STATES,  OK  OP   A   SINGLE   STATE,  IS  COMMITTED. 

§  728.  The  Government  of  the  United  States,  and  of 
each  of  the  several  States,  being  purely  representative,  the 
entire  political  power  is  committed  to  a  comparatively 
small  portion  of  the  people,  who  thus  represent  the  majority 
who  have  no  actual  voice  in  the  choice  of  rulers  ;  and  this 
class  itself  is  represented  by  the  few  delegates  elected  by  it 
to  form  the  various  legislative  and  executive  departments 
of  the  Federal  and  State  administrations.  The  class  which 
possesses  this  privilege  is  composed  in  general  of  the  free 
white  male  citizens  who  have  attained  the  age  of  twenty-one 
years  ;  yet  there  are  excei)tions  to  tiiis  rule. 


426  PERSONS    AND   PERSONAL   EIGHTS. 

§  729.  The  only  branch  of  the  national  Government 
which  in  theory  is  elected  by  popular  snftrage,  is  the  House 
of  Representatives ;  and  the  Constitution  prescribes  that  the 
members  of  this  body  shall  be  chosen  "  by  the  people  of  the 
several  States,  and  the  electors  in  each  State  shall  have  the 
qualifications  requisite  for  the  most  numerous  branch  of  the 
State  Legislature  ; "  that  is,  the  same  persons  who  are  en- 
titled by  the  laws  of  a  State  to  unite  in  the  choice  of  the 
members  of  the  lower  House  of  their  ovra  legislature,  shall 
be  allowed  to  vote  for  delegates  to  the  ISTational  House  of 
Representatives.  The  Constitution  therefore  confides  to  the 
States  the  power  of  determining  who  shall  exercise  the  right 
of  suffrage  in  electing  members  of  Congress.  It  is  plain, 
that  mere  citizenship  of  the  United  States  does  not  confer 
this  right ;  that  while  by  common  consent  minors  and  fe- 
males are  excluded,  the  State  laws  may  place  any  limitation 
upon  its  enjojnnent  by  males,  or  may  throw  open  the  door 
as  wide  as  possible.  In  fact  they  may  limit  this  political 
privilege  to  a  small  class  of  citizens  of  the  United  States,  or 
may  even  extend  it  to  persons  who  are  not  citizens. 

§  730.  As  a  general  rule  the  electors  in  each  State  are 
the  white  male  citizens  of  the  United  States,  who  have  at- 
tained tlie  age  of  twenty-one.  One  State  still,  S(juth  Caro- 
lina, demands  a  certain  property  qualification  in  the  voter  ; 
Connecticut  requires  that  he  shall  be  able  to  read  ;  Massa- 
clmsetts  admits  all  free  negroes  among  the  number  of  elec- 
tors ;  New  York,  only  those  negroes  who  possess  a  certain 
amount  of  property ;  while  most  States  reject  them  all. 
Some  of  the  States  permit  a  foreigner  to  vote  before  he  hao 
resided  in  the  United  States  the  length  of  time  required  foi 
bis  admission  to  citizenship  ;  while  in  others  the  question 
has  been  mooted  and  warmly  advocated  of  entirely  depriv- 
ing foreign  born  citizens  of  tlie  right  of  suffrage.  The  class 
of  electors  who  may  take  a  part  in  the  choice  of  delegates  to 
the  House  of  Representatives  is  not  then  defined  by  the 
C..Ti>titi]fion,  nor  is  it  composed  of  all  the  citizens,  nor  even 


METHOD  OF   ELECTING   THE   PKESIDENT.  427 

entirely  of  a  portion  of  them.  Still  the  proposition  is  true 
that  a  vast  majority  of  this  class  are  male  white  citizens  of 
the  United  States. 

§  731.  By  the  theory  of  the  Constitution,  the  evident 
intention  of  the  founders  of  the  Government,  and  the  early 
practice,  it  was  not  designed  that  the  President  and  Vice- 
President  of  the  United  States  should  be  directly  or  indi- 
rectly voted  for  by  the  people  in  such  a  manner  that  an 
elector  in  casting  his  ballot  should  be  understood  as  desig- 
nating any  particular  person  for  either  of  these  offices.  Their 
choice  was  to  be  removed  from  the  excitements  and  dis- 
tractions of  popular  elections,  and  was  to  be  entrusted  to 
the  cool  and  deliberate  judgment  of  a  few  special  electors 
appointed  for  that  purpose  by  the  several  States  in  such 
manner  as  their  laws  should  prescribe.  These  special  elec- 
tors were  assumed  to  enter  upon  the  discharge  of  their  func- 
tions untrammelled  by  any  pledges,  and  left  only  to  the  guid- 
ance of  their  own  personal  convictions  of  what  were  the 
best  interests  of  the  country.  Accordingly,  in  most  or  all  of 
the  States,  the  electors  were  originally  designated  by  the 
legislatures,  as  they  are  to  this  day  in  South  Carolina.  But 
the  rapid  spread  of  the  idea  of  the  sovereignty  of  the  people 
has  entirely  swept  away  these  conservative  checks  planned 
by  the  framers  of  the  Government,  so  that  while  the  letter 
of  the  Constitution  is  strictly  obeyed,  its  spirit  is  directly 
violated  in  the  election  of  the  chief  magistrate.  This  has 
been  accomplished  by  the  abandonment  of  the  choice  of  the 
presidential  electors  to  the  people  of  the  several  States,  and 
by  the  closely  drawn  lines  of  party  discipline,  by  which  sets 
of  electors  unequivocally  pledged  to  a  particular  candidate, 
and  directly  voted  for  by  the  people,  have  become  in  fact 
the  mere  passive  instruments  of  the  majority  of  the  voters  in 
carrying  out  their  will  as  expressed  by  the  ballot  box.  This 
complete  change  in  the  manner  of  electing  the  President  is 
a  remarkable  instance  of  the  way  in  which  written  laws  and 
constitutions  however  carefully  guarded  may  be  made  to 


428  PEESONS    AND   PERSONAL    EIGHTS. 

vield  to  a  cliange  in  popular  feelings  and  wishes,  so  that 
while  not  a  clause  is  repealed  or  modified,  the  effect  of  the 
whole  is  completely  transfoi-med.  On  the  letter  of  the  Con- 
stitution there  has  grown  up  an  unwritten  law,  not  indeed 
enacted  by  courts,  but  devised  and  voluntarily  obeyed  by 
those  who  manage  the  machinery  of  popular  elections. 
Under  our  present  customs,  the  choice  of  presidential  elec- 
tors has  become  a  mere  idle  and  useless  form  ;  and  it  would 
be  better  to  abandon  it  altogether  and  permit  the  people  to 
vote  directly  for  the  President,  or  else  to  conform  our  prac- 
tice again  to  the  original  meaning  and  design  of  the  organic 
law. 

§  732.  All  other  officers  of  the  United  States  are  ap- 
pointed by  the  President,  except  the  senators,  who  are 
chosen  by  the  Legislatures  of  the  respective  States.  Prom 
the  class  of  male  citizens  of  the  United  States  of  the  age  of 
twenty-one  and  ujDwards,  all  the  civil  officers  are  to  be 
taken,  and  in  a  few  instances  there  are  further  restrictions. 
Tlie  President  and  Yice-President  must  be  natural-born  citi- 
zens who  have  attained  the  age  of  thirty-five.  Xatural-born 
evidently  signifies  a  birth  within  the  actual  limits  of  the 
national  juHsdiction.  Senators  must  be  citizens  who  have 
reached  the  age  of  thirty,  and  if  of  foreign  birth,  must  have 
been  admitted  to  citizenship  at  least  for  nine  years.  Mem- 
bers of  the  House  of  Representatives  must  be  citizens  who 
have  attained  the  age  of  twenty-five,  and  if  of  foreign  birth, 
must  have  passed  seven  years  since  their  naturalization.  It 
would  be  iiseless  to  attempt  to  give  the  qualifications  re- 
quired of  electors  and  of  civil  officers  in  the  various  States. 
The  general  rule  already  stated  is  sufficient.  Tlie  same  in- 
fluences which  have  caused  the  office  of  President  to  be 
filled  virtually  by  popular  election,  have  gradually  added 
to  the  power  of  the  people  in  choosing  State  officers.  One 
office  after  another  has  been  yielded  to  the  direct  vote  of 
the  electors,  until  in  New  York  the  governor  and  all  heads 
of  departments,  the  legislature,  the  judges  of  all  the  courts, 


HUSBAND   AND   WIFE.  429 

shoiiffs,  clerks,  and  all  other  ministerial  officers,  are  cliosen 
at  popular  elections.  Many  other  States  have  followed  this 
example,  but  in  some  the  judiciary  are  yet  saved  from  the 
temptations  and  inevitable  influence  of  party  politics  and 
contested  elections. 

Section  Second. 

SOME    PARTICULAR    CLASSES    OF    PERSONS,    AND    THEIR    PECULIAB 
RIGHTS    AND    DUTIES. 

§  733.  Having  described  the  more  general  rights  which 
belong  to  all  or  nearly  all  the  persons  of  which  the  com- 
monwealth is  composed,  I  shall  in  this  section  state  the 
leading  features  of  the  law  relating  to  certain  special  classes 
of  persons  which  form  a  large  part  of  the  nation.  Two  of 
these  classes  at  least  lie  at  the  very  foundation  of  all  society, 
for  they  compose  that  unit  in  all  true  social  organization, 
the  family,  and  include  its  primary  elements,  the  wedded 
parents  and  the  children.  The  other  classes,  vrhich  are 
accessory  to  these,  are  the  guardians,  who  at  the  death 
of  parents  supply  their  place,  and  servants  who  aid  the  chil- 
di*en  in  the  labors  of  the  family  and  the  services  due  to  the 
parents.  This  section  is  devoted  then  to  the  description  of 
the  respective  status,  rights,  and  duties  of  Husband  and 
Wife,  Parent  and  Child,  Guardian  and  Ward,  Master  and 
Servant. 

I.    HUSBAND  AND  WIFE. 

§  734.  1.  The  Marel4.ge  Relation. — The  idea  of  mar- 
riage, of  the  mutual  choice  of  each  other  by  one  man  and 
one  woman  to  unite  and  form  one  separate  family,  and  be 
the  parents  of  children  who  are  to  be  their  special  care,  and 
are  to  perpetuate  their  name,  seems  to  be  as  naturally  im- 
planted in  the  human  race  as  the  idea  of  language  or  of  reli- 
gion. The  earliest  record,  which  leads  us  back  to  the  very 
birth  of  mankind,  tells  of  marriage  from  the  beginning  ;  and 


iCO  PEKSOxN^S    AND   PERSONAL    EIGHTS. 

the  histories  of  all  peoples  who  hare  a  history,  disclose  its 
exittenee.  Often  it  has  been  debased  from  its  pure  ideal, 
and  its  simplicity  and  beanty  marred  and  almost  destroyed, 
by  the  prevalence  of  corjcubinage  and  polygamy ;  but  still 
no  nation  has  sunk  so  low,  has  so  entirely  lost  the  original 
divine  life  breathed  into  humanity,  as  to  be  without  some 
approach  to  that  personal  choice  and  separation  of  two  indi- 
viduals of  opposite  sex  from  all  others,  which  constitute  this 
relation.  And  among  those  peoples  where  civilization  has 
made  the  most  progress,  whether  in  ancient  or  modern 
times,  and  especially  where  the  pure  morality  of  the  Chris- 
tian religion  has  been  felt  in  moulding  the  institutions  and 
laws,  we  sliall  find  the  marriage  tie  the  strongest,  the  sepa- 
ration of  husband  and  wife  from  all  others  the  most  com- 
plete, the  unity  of  the  family  the  most  perfect. 

§  735.  We,  together  with  all  the  nations  of  "Western  Eu- 
rope, derive  our  notions  of  the  mamage  institution  as  a  part 
of  the  municipal  law,  from  two  sources,  the  Romans,  and 
the  Germans,  among  both  of  whom  it  was  carefully  guarded 
by  positive  enactment,  by  custom,  by  the  sanctions  of  reli- 
gion, and  by  the  general  sentiments  of  the  people.  I  have 
shown  in  the  former  part  of  this  work,  that  from  the  very 
beginning,  the  Roman  law  was  severe  and  particular  in  its 
regulations  of  this  domestic  relation,  and  that  while  the  Ro- 
man people  preserved  their  ancient  simplicity  of  morals 
and  manners,  the  tie  of  husband  and  wife  was  still  kept 
sacred  ;  that  with  the  growing  luxury  of  the  empire,  divorces 
became  easy  and  frequent ;  but  that  they  were  subsequent- 
ly restrained  by  the  better  Christian  emperors.  The  wild 
Germans  held  woman  in  high  estimation,  and  this  tribal 
sentiment  was  nourished  and  strengthened  by  the  influence 
of  feudalism,  and  over  the  whole  of  Em-ope  the  Clim*ch  ex- 
tended her  power,  and  added  an  element  of  religion  to  the 
merely  civil  contract  between  man  and  wife. 

§  736.  (1).  Definition  of  Marriage. — ^Marriage  is  often 
defined  a~  a  contract  with  some  peculiar  incidents.     1  pre- 


THE   MAKRIAGE   RELATION.  431 

fer  and  adopt  the  definitioD  given  by  Mr.  Bishop,  author  of 
a  late  Treatise  on  the  Law  of  MaiTiage  and  Divorce. 
"  Marriage  is  a  civil  status,  existing  in  one  man  and  one 
•woman  legally  united  for  life,  for  those  civil  and  social  pur- 
poses which  are  based  in  the  distinction  of  sex.  Its  source 
is  the  law  of  nature,  whence  it  has  flowed  into  the  municipal 
law  of  every  civilized  country,  and  into  the  general  law  of 
nations.  And  since  it  can  only  exist  in  pairs,  and  since  no 
persons  are  compelled,  but  all  who  are  capable  are  permitted 
to  assume  it,  marriage  may  be  said  to  proceed  from  a  civil 
contract  between  one  man  and  one  woman  of  the  needful 
physical  and  civil  capacity.  While  the  contract  remains 
executory,  that  is,  an  agreement  to  marry,  it  differs  in  no 
essential  particulars  from  all  other  civil  contracts.  But 
when  the  contract  becomes  executed  in  what  the  law  re- 
gards as  a  valid  marriage,  its  nature  as  a  contract  is  merged 
in  the  higher  nature  of  the  status.  And  though  the  new 
relation  may  retain  some  similitudes  to  remind  us  of  its 
origin,  the  contract  does  in  truth  no  longer  exist,  but  the 
parties  are  governed  by  the  law  of  husband  and  wife." 

§  T37.  (2).  Hoio  entered  into. — Mr.  Bishop  sums  up  the 
essentials  of  a  valid  marriage  in  a  compact  form  which  I 
quote :  1st,  an  agreement  between  the  parties ;  2d,  the  ob- 
servance of  the  forms  required  by  law  ;  3d,  a  sound  mind  ; 
4th,  the  requisite  age  ;  5th,  a  capacity  of  the  parties  to  con- 
tract marriage  generally ;  6th,  a  capacity  to  contract  "wdth 
each  other.  The  grounds  for  the  nullity  of  a  marriage  are 
the  opposites  of  these  :  1st,  want  of  an  agreement  which  the 
law  recognizes  ;  2d,  want  of  the  use  of  the  proper  forms  re- 
quired by  law  ;  3d,  unsoundness  of  mind  in  either  of  the 
parties  ;  4th,  want  of  sufficient  age  ;  5th,  want  of  a  general 
capacity  to  marry,  such  as  results  from  the  existence  of  a 
former  husband  or  wife  ;  6th,  want  of  a  particular  capacity 
to  marry  between  the  parties,  such  as  results  from  consan- 
guinity or  affinity.  Some  of  these  disabilities  render  a  mar- 
riage absolutely  void,  others,  voidable. 


432  PEKS0^'s  and  personal  eights. 

§  738.  In  describing  tlie  legal  condition  of  marriage,  we 
must  continually  bear  in  mind  the  two  sources  whence  the 
rules  concerning  it  are  derived,  tlie  common  law,  and  the 
statute.  We  must  enquire  then  what,  as  a  foundation,  the 
common  law  of  England  has  established,  and  what  altera- 
tions or  additions  to  this  the  statute  has  enacted. 

Bv  the  common  law  of  England,  irrespective  of  the  inno- 
vations of  the  Church  or  Parliament,  the  parties  to  a  law- 
ful marriage  must  be  a  man  and  woman,  respectively  of  the 
ages  of  fourteen  and  twelve  or  over,  of  sound  mind,  not 
related  to  each  other  in  the  direct  ascending  or  descending 
line,  and  not  collaterally  as  brother  and  sister,  and  neither 
at  the  time  being  bound  by  any  other  existing  marriage. 
Marriages  celebrated  between  persons  either  of  whom  is 
under  the  required  age,  are  voidable,  and  may  be  either 
ratified  or  repudiated  by  the  party  upon  attaining  that  age. 
Those  entered  into  between  persons  related  to  each  other  as 
above  stated,  would  be  repugnant  to  the  moral  sense,  inces- 
tuous and  absolutely  void.  Tliose  also  where  one  of  the 
parties  has  a  husband  or  wife  still  living,  are  absolutely 
void,  and  need  no  legal  proceedings  to  annul  them.  The 
marnageable  ages  of  fourteen  and  twelve  were  borrowed 
from  the  Roman  law,  and  have  doubtless  been  altered,  in 
most  or  all  of  the  American  States,  by  statute.  In  most 
of  those  European  countries  where  the  Canon  law,  or  the 
code  established  by  the  Church  of  Rome,  prevails  or  exerts 
an  influence  upon  the  municipal  law,  persons  within  the 
Levitical  degrees  of  relationship  are  forbidden  to  marry. 
Tliis  rule  was  early  adopted  in  England  by  statute,  and  has 
been  followed  in  many  of  the  American  States.  A  viola- 
tion of  this  canonical  disability,  however,  only  renders  the 
marriage  voidable,  unless  otherwise  directed  by  statute. 

§  739.  As  the  common  law  regards  marriage  as  based 
simply  upon  a  civil  contract,  it  requires  for  its  ratification 
only  the  free  consent  and  agreement  of  the  parties.  This 
consent  may  be  openly  made  in  the  presence  of  any  wit- 


CONSENT   OF   THE   PARTIES    NECES8AET.  433 

nesses,  whether  official  or  private,  and  it  may  even  be  in- 
ferred from  the  subsequent  acts  of  the  parties  toward  each 
other,  from  their  cohabitation,  their  treatment  of  each 
other  as  husband  and  wife,  their  sufferance  of  others  to 
regard  them  as  such,  and  the  like.  It  must  not  be  under- 
stood that  such  acts  as  these  amount  in  themselves  to  a 
marriage ;  they  are  only  evidence,  more  or  less  weighty, 
of  that  prior  consent  and  agreement  which  is  the  essence  of 
a  legal  maiTiage.  It  will  be  seen  then  that  the  contract 
of  marriage,  which  is  made  so  enduring,  and  is  fraught  with 
such  momentous  consequences  as  the  complete,  lifelong 
union  of  the  parties,  and  the  birth  and  education  of  off- 
spring, and  all  the  other  results  which  flow  from  the  family 
relation,  is  left  by  the  common  law  to  be  completed  with 
the  same  ease  and  informality,  as  the  most  simple  agree- 
ments for  buying,  or  selling,  or  carrying  on  any  other  trans- 
actions of  life.  Wherever  the  common  law  yet  prevails 
unaltered,  as  in  the  State  of  New  York,  this  rule  still 
exists. 

§  740.  The  common  law  of  England  was,  however, 
modified  from  the  time  of  the  Council  of  Trent  by  the  in- 
troduction of  a  rule  requiring  the  presence  of  a  clergyman 
to  render  a  marriage  valid.  Subsequently  in  that  country, 
and  in  many  of  the  States  of  our  own  land,  more  formalities 
have  been  made  necessary  by  statutes,  by  means  of  wliich  the 
free  consent  of  the  parties  shall  be  publicly  made.  Among 
these  are  the  consent  of  the  parents  or  guardians  of  a  person 
under  age,  the  publication  of  banns,  a  license  from  some 
designated  officer,  a  public  nuptial  ceremony  in  church 
conducted  by  a  minister  of  religion,  or  the  ratification  of 
the  contract  before  some  appointed  officer,  and  the  registry 
of  the  marriage  in  public  records.  It  is  impossible  here  to 
describe  with  any  minuteness  and  accuracy  the  various 
forms  made  requisite  by  the  legislation  of  our  different 
States.  They  are  all  intended  to  produce  that  care  and 
deliberation  which  should  precede  and  accompany  the  en- 
28 


io4:  PERSONS    AND    PERSONAL   RIGHTS. 

tering  into  so  solemn,  enduring,  and  momentous  a  status  a? 
raatrimonv. 

§  Y41.  Still  bj  all  these  statutes,  as  -vrell  as  bj  the 
common  law,  the  very  gist  of  the  marriage  relation,  that 
which  gives  it  binding  efficacy,  is  the  free  consent  of  the 
parties.  A  marriage  contracted  by  force,  or  duress,  such 
as  threatened  violence,  or  by  gross  fraud,  may  be  annulled 
at  the  suit  of  the  injured  party,  as  any  other  contract  may 
be  set  aside  for  the  same  reason.  But  the  fraud  must  be 
complete  ;  mere  deception  as  to  one's  rank  or  station  in  life, 
or  wealth,  or  character,  would  be  an  insufficient  cause  for 
the  deceived  party  to  escape  from  the  bonds  of  matrimony. 
Public  policy  requires  that  these  engagements  should  be 
neither  lightly  formed  nor  lightly  broken,  and  the  law 
refuses  its  aid  to  any  who  have  blindly  and  credulously 
allowed  themselves  to  be  drawn  into  an  unfortunate 
connection. 

§  742  (3).  Character  of  the  marriage  relation. — The 
characteristics  of  the  marriage  relation  are,  that  it  di'aws 
the  parties  from  all  the  rest  of  society,  and  unites  them 
into  one  family,  forming  new  relationships  of  affinity  ;  that 
it  mingles  their  lilood,  and  thus  inaugurates  a  new  stock 
of  descent  with  all  its  complicated  eflects  upon  inheritances 
of  property  and  relationships  by  consanguinity ;  that  by 
the  common  law  it  effects  a  legal  unity  of  the  husband  and 
wife,  merging  her  legal  existence  for  the  time  being  almost 
entirely  in  his,  and  erecting  him  as  the  head  of  the  family, 
bound  for  its  support,  and  in  a  great  measure  responsible 
for  its  acts ;  and  that  it  cannot,  like  mere  civil  contracts, 
be  dissolved  by  the  mutual  consent  of  the  parties,  but  must, 
in  general,  last  until  the  death  of  one  of  them.  Marriage 
thus  changes  the  legal  relations  of  the  parties  to  each  other 
and  to  all  the  rest  of  mankind.  It  is  the  corner  stone  of 
the  family,  around  which  are  grouped  the  children  with 
their  peculiar  relations,  in  which  are  centred  the  ties  of 
blood,  and  by  which  are  determined  many  of  the  disposi- 


VOID   MAKKIAGES — DIVORCE.  435 

tions  of  property.  It  gives  the  husband  and  wife  rights  and 
duties  toward  eacli  other's  persons  and  property ;  it  gives 
them,  as  parents,  rights  and  duties  toward  the  persons  and 
pl'operty  of  their  children ;  and  to  the  cliildren  rights  and 
duties  toward  the  persons  and  property  of  the  parents.  A 
sketch  of  these  several  obligations  will  form  the  greater 
part  of  this  section. 

§  743.  (4).  How  the  marriage  relation  may  he  terminated. 
— It  is  of  course  terminated  by  the  death  of  either  of  the 
parties.  Some  marriages  are  absolutely  void  from  the  be- 
ginning ;  they  never  bore  the  character  of  a  lawfal  wed- 
lock, and  whenever  called  in  question  in  any  collateral 
proceeding  respecting  the  dispositions  of  property  or  the 
rights  of  persons,  are  treated  as  a  nullity.  Others  are  void- 
able from  some  cause  existing  at  their  inception.  They  are 
as  truly  marked  by  an  inherent  defect  as  those  of  the  former 
class,  but  must  be  declared  to  be  null  by  a  competent  court, 
in  a  suit  directly  instituted  for  that  purpose  by  the  injured 
party.  As  a  general  rule  those  marriages  affected  by  civil 
disability,  such  as  the  existence  of  a  husband  or  wife  of  one 
of  the  parties,  are  void,  while  those  affected  by  canonical 
disability,  such  as  affinity  or  consanguinity  within  the  pro- 
hibited degrees,  are  only  voidable.  To  this  rule  there  are 
however  some  important  exceptions,  for  marriages  con- 
tracted by  force  or  fraud,  and  those  in  which  one  of  the 
parties  is  under  the  marriageable  age,  are  simply  voidable. 
The  person  aggrieved  by  the  fraud  or  force,  or  the  one  under 
age,  may  still  ratify  the  contract,  and  this  consent  would 
seem  to  relate  back  to  the  inception  of  the  relation  and 
render  it  valid.  In  the  ease  of  both  void  and  voidable  mar- 
riages, the  connection  is  dissolved  because  it  was  never  law- 
fully entered  into  ;  there  never  was  free  consent  between 
persons  legally  capable  of  matrimony  ;  and  in  some  cases 
the  judicial  power  of  the  State  is  invoked  to  remove  all 
doubt,  and  establish  the  invalidity. 

§  744.  Divorce  on  the  other  hand  is  the  dissolution  of  a 


i3G  PERSONS    A-ND   PEE60NAL   EIGHTS. 

marriage  fairly  and  lawfully  contracted,  for  some  cause 
arising  subsequent  to  its  inception.  Two  species  of  divorce 
are  known  to  om*  law,  that  wliich  is  absolute  (a  vinculo 
matrimonii),  by  which  tlie  marriage  tie  is  completely  dis- 
solved and  the  j^arties  restored  to  their  former  condition ; 
and  that  which  is  limited  (a  mensa  et  thoro),  which  is  a 
legal  separation  of  the  husband  and  wife,  destroying  the 
family,  ending  the  cohabitation,  but  not  freeing  either  party 
fi'om  the  restraints  upon  a  subsequent  marriage. 

§  745.  Until  the  year  1858,  it  was  long  settled  by  the 
English  law  that  no  absolute  divorces  could  be  granted  ex- 
cept by  act  of  Parliament,  and  then  only  at  the  instance 
of  the  husband  on  account  of  the  adultery  of  the  wife,  and 
in  a  few  cases  at  the  suit  of  the  wife  for  the  adultery  of  the 
husband  attended  by  aggravated  circumstances.  When 
such  an  act  was  obtained,  both  parties  were  entirely  free 
from  the  contract,  and  were  at  liberty  to  marry  again.  But 
the  ecclesiastical  courts  had  power  to  grant  limited  divorces 
on  account  of  adultery,  or  cruel  treatment,  or  wilful  deser- 
tion for  two  years  or  upwards.  The  cruelty  which  will 
warrant  a  judicial  separation  must  consist  in  something 
more  than  unkindness,  harsh  words,  and  ill-temper  ;  it  must 
be  accompanied  by  some  force  and  violence,  so  as  to  endan- 
ger the  life,  or  health,  or  bodily  safety  of  the  injured  party. 
Tlie  adultery  of  husband  or  wife  will  not  be  deemed  a  suffi- 
cient ground  for  a  divorce  of  either  kind,  if  the  complainant 
has  been  guilty  of  the  same  offence,  or  has  voluntarily  co- 
habited with  the  offender  after  a  discovery  of  the  fault. 
After  an  agitation  prolonged  through  many  years,  the  Eng- 
lish law  of  divorce  was  changed  in  the  year  1858  by  an  act 
of  Parliament.  A  special  court  was  erected  having  cogni- 
zance of  such  causes,  and  all  the  jurisdiction  of  the  eccle- 
siastical courts  in  these  matters  was  transferred  to  the  new 
tribunal.  In  addition  to  the  limited  divorces  above  de- 
Bcribfd,  an  absolute  divorce  may  be  obtained  by  the  hus- 
band for  the  adultery  of  the  wife,  and  by  the  wife  for  the 


EIGHTS    AND   DUTIES    OF   HUSBAND    AND   WIFE.  437 

husband's  incestiioiis  adultery,  or  bigamy  with  adultery, 
or  adultery  coupled  "^ith  gross  cruelty  or  aggravated  cir- 
cumstances, or  adultery  coupled  with  wilful  desertion  for 
two  years. 

§  74:6.  In  our  own  country  the  legislation  of  the  diiFer- 
ent  States  on  the  subject  of  divorce  is  exceedingly  varying 
and  conflicting.  In  some,  absolute  divorces  are  denied  ex- 
cept by  an  act  of  the  legislature  ;  in  others,  the  law  admits 
the  maiTiage  relation  to  be  dissolved  with  the  utmost  fa- 
cility, for  such  causes  as  adultery,  cruel  treatment,  deser- 
tion for  a  comparatively  sliort  time,  and  even  such  disagree- 
ments and  incompatibility  of  temper  as  render  it  impossible 
for  the  parties  to  live  happily  together.  The  law  of  the 
State  of  New  York  may  be  taken  as  a  type  of  the  more 
conservative  legislation  upon  this  subject,  and  its  rules  are 
perhaps  as  nearly  perfect  as  any  that  can  be  devised.  Ab- 
solute divorces  are  granted  to  either  husband  or  wife  for  the 
adultery  of  the  other,  special  pains  being  taken  to  prevent 
collusion,  and  to  establish  the  fact  of  the  actual  guilt.  The 
marriage  tie  is  then  dissolved,  and  the  complainant  is  per- 
mitted to  marry  again,  while  the  offender  is  still  forbidden 
to  marry  during  the  lifetime  of  the  former  liusband  or  wife. 
Limited  divorces  are  granted  on  account  of  cruel  and  in- 
human treatment,  or  wilful  desertion  by  the  husband  and 
refusal  to  provide  for  the  wife.  In  all  cases,  the  English 
rules  stated  above  in  regard  to  the  innocence  of  the  appli- 
cant, and  a  pardon  of  the  fault,  have  been  adopted,  and 
doubtless  also  prevail  in  all  the  other  States  where  di^^orces 
are  granted  by  the  judicial  action  of  the  courts.  When  a 
divorce  of  either  kind  is  granted  to  the  wife,  the  husband 
may  be  compelled  to  make  her  a  yearly  allowance  out  of 
his  property,  which  is  teclmically  called  alimony. 

§  74T.  2.  Eights,  Powers,  and  Duties  of  Husband 
AND  Wife. — The  rules  of  the  common  law  which  define  the 
effects  of  the  mamage  relation  upon  the  rights,  powers,  and 


438  PERSONS    AND    PERSONAL    EIGHTS. 

duties  of  the  parties  thereto  are  logical  and  severe.  Thej 
are  all  based  upon  the  principle  of  the  complete  legal  unity 
of  the  spouses,  and  the  theory  that  this  unity  consists  in  the 
merging  of  the  legal  personality  of  the  wife  in  that  of  the 
husband,  and  not  in  any  community  or  partnership  of  in- 
terests, where  each  has  an  equal  voice.  This  idea  was  in- 
corporated very  firmly  into  the  framework  of  our  law  as  it 
was  built  up  by  judicial  decision,  and  the  various  regula- 
tions of  personal  rights,  and  rights  to  property,  are  deduc- 
tions more  or  less  direct  from  this  premise. 

§  748.  The  husband  then  is  the  legal  head  of  the  family, 
and  clothed  with  all  the  powers  which  flow  from  this  posi- 
tion ;  his  will  is  the  source  of  domestic  law  ;  he  is  entitled 
to  the  presence,  attention,  aliection,  and  obedience  of  the 
wife.  As  the  municipal  law,  however,  by  its  remedies  can 
only  reach  outward  acts,  a  portion  of  these  duties  alone  can 
be  enforced  by  legal  proceedings.  He  has  the  right  to  fix 
the  place  of  abode,  and  to  change  it,  and  the  wife  must  fol- 
low ;  and  so  strict  is  the  law  upon  this  point,  that  it  de- 
clares the  domicil  of  the  husband  to  be  that  of  the  wife,  even 
when  she  actually  lives  apart  from  him,  unless  judicially 
separated.  The  wife  can  bring  no  actions  in  her  own  name ; 
in  all  suits  in  which  she  is  interested  the  husband  must  be 
joined  with  her  if  she  be  a  party,  and  in  a  large  portion  he 
is  the  only  proper  party.  On  the  other  hand  she  is  not 
liable  to  be  sued,  even  for  a  claim  arising  before  marriage. 

§  749.  His  duties  grow  out  of  these  rights  of  headship. 
Upon  him  alone  the  family  depend  for  suj)port ;  he  must 
provide  the  wife  with  necessaries  suitable  to  her  situation 
and  his  condition  in  life,  and  is  in  general  bound  for  debts 
contracted  by  her  for  such  necessaries.  He  is  responsible 
for  the  frauds  and  wrongs  committed  by  his  wife ;  solely 
liable  if  done  in  his  presence,  or  by  his  order  ;  otherwise 
jointly  liable  with  her.  Her  debts  contracted  before  mar- 
riage may  be  recovered  from  him,  but  his  responsibility 
ceases  at  her  death. 


husband's  eights  of  peopeett.  439 

§  750.  The  rights  and  duties  of  tlie.  wife  are  the  correla- 
tives of  those  of  the  husband.  She  is  entitled  to  protection 
and  support ;  she  must  yield  obedience ;  her  will  is  subor- 
dinate to  his.  She  cannot  engage  in  transactions  with  third 
persons  in  her  own  name  ;  she  can  only  bind  her  husband 
for  necessaries ;  any  credit  given  to  her  beyond  tbis  is  en- 
tirely at  the  risk  of  tbe  person  furnishing  the  articles  and 
giving  the  credit. 

§  751.  Another  very  important  rule  of  the  common  law, 
deduced  from  the  principle  of  tlie  unity  of  husband  and  wife, 
was,  that  neither  could  be  a  witness  for  or  against  the  other 
in  any  judicial  proceeding.  This  rule  is  a  marked  instance 
of  the  scrapiilous  care  of  the  English  law  to  segregate  fami- 
lies, and  preserve  inviolate  their  unity,  and  the  perfect  trust 
and  confidence  which  should  prevail  in  them,  and  which  are 
so  necessary  to  their  peace  and  happiness.  The  law  thus 
endeavored  to  remove  all  possible  opportunity  for  tbe  dis- 
putes between  husband  and  wife  to  be  brought  by  them 
into  the  courts,  and  to  throw  them  back  upon  their  own 
domestic  forum  for  settlement  and  reconciliation.  The 
principal  exception  to  this  rule,  necessary  to  preserve  the 
public  peace,  was,  that  in  a  criminal  proceeding  against  one 
spouse  for  violence  done  to  the  other,  the  injured  party 
was  admitted  as  a  witness  to  prove  the  offence. 

§  752.  The  same  fundamental  principle  exerted  its  in- 
fluence on  the  rights  of  property.  The  husband  acquired 
all  the  personal  effects  belonging  to  the  wife  at  the  time  of 
the  marriage,  and  all  which  accrue  to  her  from  any  source 
during  its  continuance.  This  becomes  his  own,  to  be  dis- 
posed of  at  his  pleasure,  and  is  of  course  subject  to  be  taken 
by  his  creditors  in  satisfaction  of  his  debts. 

All  lands  held  by  lease,  and  all  debts  due  to  the  wife  on 
bonds,  notes,  contracts  or  otherwise,  technically  known  as 
"  things  in  action,"  also  pass  to  the  husband,  but  with  this 
limitation  that  they  do  not  in  general  become  his  until  he 
actually  reduces  them  into  possession,  as  by  collecting  the 


i40  PEBSONS   AND    PEKSGNAL   EIGHTS 

raonej  due  on  a  bond,  or  substituting  a  new  aecuilcy  m  the 
place  of  the  one  given  to  the  wife.  If  he  die  before  this  is 
done,  they  remain  to  the  wife  ;  if  she  die  before  it  is  done, 
thev  form  a  part  of  her  estate. 

The  lands  owned  by  the  wife  absolutely,  or  held  by  her 
for  life,  do  not  become  the  husband's,  but  be  is  entitled  to 
their  possession  and  management,  and  to  their  rents  and 
profits  during  the  marriage,  and  if  she  die  before  him,  this 
right  continues  for  his  life  as  to  the  lands  of  which  she  was 
the  absolute  owner,  provided  any  children  had  been  born 
capable  of  iuheriting  the  property  from  her. 

§  753.  Tlie  common  law  gave  the  wife  no  right  in,  or 
ownership  over,  her  husband's  property  during  his  life, 
which  amounted  to  anything  more  than  a  mere  possible 
claim.  But  upon  his  death  a  right  which  had  its  inception 
during  his  life,  became  fixed,  absolute,  and  tangible.  This 
is  known  as  dower.  Dower  is  the  right  which  the  widow 
has  to  enjoy  for  her  life  the  one  third  of  all  the  real  estate 
of  which  the  husband  was  absolute  owner  during  the  mar- 
riage. This  right  then  has  its  origin  while  the  wedlock 
continues ;  and  at  the  time  of  the  marriage  immediately 
applies  to  all  lands  then  owned  by  him,  and  afterwards 
attaches  to  all  of  which  he  becomes  owner,  and  can  be  de- 
stroyed by  no  act  of  his,  not  even  by  a  sale  of  the  property, 
or  by  a  will  devising  it  to  a  third  person.  The  wife  how- 
ever may  divest  herself  of  it.  In  the  United  States  this  is 
done  by  the  wife  executing  the  deed  of  land  in  connection 
with  her  husband,  and  acknowledging  the  instniment,  sepa- 
rate and  apart  from  him,  and  before  some  proper  ofiicer,  to 
have  been  done  by  her  voluntarily,  without  any  fear  or 
compulsion.  The  right  of  dower  is  much  favored  by  the 
common  law,  and  the  rules  protecting  it  are  very  stringent. 
It  is  regarded  as  some  compensation  out  of  her  husband's 
property  for  the  interests  which  she  has  surrendered  to 
him,  and  as  a  provision  for  her  maintenance  after  she  is  de- 
prived of  the  support  of  the  head  of  the  family. 


MODIFICATIONS    MADE    BY   EQUITY.  441 

The  wife  has  also  a  possible  claim,  or  expectancy,  in  the 
personal  property  of  her  husband.  If  he  should  die  intes- 
tate, she  is  entitled  in  England  to  one  tliird  of  his  personal 
property,  if  he  leaves  children  living,  and  to  one  half, 
where  there  are  none  ;  but  this  expectation  may  be  entirely 
defeated  by  will.  In  the  d liferent  States  of  America  the 
same  rule  prevails,  but  variously  modified  by  statute. 

§  754.  As  a  corollary  to  these  legal  relations  resulting 
from  man'iage,  the  husband  and  wife  were  incapable  by 
the  common  law  of  entering  into  any  valid  contract  with 
each  other  in  respect  to  themselves  or  their  property. 
Even  a  deed  from  one  to  the  other  was  void.  Contracta 
made  by  them  before  the  mamage,  reserving  interests  to 
the  wife,  also  became  nugatory,  for  the  husband  was  by  law 
mvested  with  the  absolute  ownership  of  the  wife's  personal 
property,  and  with  the  j^ower  to  appropriate  to  his  own  use 
all  benefits  accruing  to  her  from  contracts. 

§  755.  This  sketch  of  the  general  rights,  powers,  and  du- 
ties of  the  parties  to  the  marriage  relation,  shows  that  the 
rales  of  the  common  law  are  logical  and  strict,  and  well 
calculated  to  preserve  the  integrity  of  the  family.  When 
they  have  not  been  altered  by  judicial  decision  or  by  statute, 
they  still  prevail  in  England  and  the  American  States,  and 
form  the  foundation  of  that  portion  of  the  municipal  law 
which  affects  the  domestic  relations. 

§  756.  But  many  of  these  rules  were  long  ago  felt  to  be 
harsh  and  inequitable.  Their  operation  was  more  suited  to 
a  rude  age  and  to  a  somewhat  imperfect  civilization,  than 
to  the  times  when  woman  had  been  raised  by  education  and 
by  the  sentiments  of  the  nation  to  an  equality  with  man. 
They  afibrded  too  many  opportunities  for  the  wife  to  be 
oppressed,  and  her  property  squandered,  by  a  careless  or 
criminal  husband.  As  the  courts  must  always  reflect  the 
wants  of  the  people  and  the  civilization  of  the  age,  it  was 
both  natural  and  inevitable  that  modifications  and  additions 
should  be  made  by  judicial  decision,  in  these  strict  require- 


142  PERSONS   AND   PERSONAL   RIGHTS. 

ments  of  the  law.  Tliis  has  been  done  by  the  courts  of 
eqnity,  and  a  system  of  regulations,  supplementing  those 
administered  by  the  law  conrts,  has  been  built  \ip,  which, 
forming  a  part  of  the  general  mnnicipal  law,  has  to  a  great 
extent  changed  the  relative  rights  of  the  husband  and  wife 
in  regard  to  her  property,  or,  to  speak  more  accurately,  lias 
rendered  it  possible  for  them  to  change  these  rights.  These 
modifications  of  the  law  have  not  interfered  with  those  rules 
whicli  define  the  mere  personal  relations  of  husband  and 
wife  ;  they  have  not  abrogated  his  legal  supremacy  as  head 
of  the  family  ;  nor  have  they  attempted  in  terms  to  repeal  or 
set  aside  the  doctrines  of  tlie  common  law  as  already  stated. 
The  courts  of  equity  do  not  proceed  in  this  direct  antago- 
nistic manner.  Assuming  as  the  basis  of  their  action  the 
doctrine  of  trusts,  which  was  shortly  described  in  Chapter 
II.  of  Part  First,  and  developing  this  idea,  they  have  simply 
given  force  and  effect  to  contracts  made  between  the  in- 
tended spouses  before  marriage,  or  between  the  husband 
and  wife  after  marriage,  by  which  the  wife's  proj^erty  or 
some  portion  of  it,  or  even  some  part  of  the  husband's,  was 
agreed  to  be  reserved  to  her  for  her  own  separate  use,  free 
from  his  control.  Such  marriage  contracts  are  technically 
known  as  settlements,  and  are  generally  made  by  the  inter- 
vention of  some  third  person  as  tnistee,  to  whom  the  prop- 
erty is  conveyed  to  be  held  by  him  for  the  wife's  use.  They 
are  very  frequent  in  England.  But  the  aid  of  a  third  party 
is  not  absolutely  necessary,  for  the  courts  of  equity  will 
compel  the  liusband  himself  to  act  as  trustee,  and  will  treat 
property  in  his  hands,- which  has  been  settled  upon  the  wife, 
as  her  separate  estate,  and  will  direct  him  to  manage  it  for 
her  benefit.  The  result  of  this  action  of  the  courts  of  equity 
is,  that  parties  contemplating  maiTiage,  and  even  those  al- 
ready maiTied,  when  the  rights  of  creditors  of  the  husband 
are  not  thereby  prejudiced,  may,  by  a  contract,  withdraw 
the  property  of  the  wife,  or  that  of  the  husband  settled  on 
her,  from  the  operation  of  the  strict  rules  of  the  common 


KECENT  LEGISLATION   IN  AMEEICA.  443 

law,  and  may  clotlie  her  witli  rights  of  ownership  over  it, 
untrammelled  by  any  claim  or  interference  from  the  hus- 
band. In  respect  to  such  property  the  rules  of  equity  treat 
her  as  though  she  were  a  single  woman,  and  they  have  thus 
in  effect  gone  far  towards  a  practical  repeal  of  some  of  the 
requirements  of  the  ancient  law.  As  the  wife  is  considered 
a  single  woman  in  regard  to  such  property,  she  is  permitted 
to  act  towards  it  in  a  great  measure  as  though  she  were  un- 
married ;  to  contract  obligations  and  debts  concerning  it 
with  third  persons,  which  the  courts  of  equity  will  enforce 
against  the  property,  though  not  against  herself  personally. 
The  elementary  nature  of  this  work  does  not  permit  me  to 
enter  with  any  minuteness  into  the  numerous  and  refined 
rules  which  have  been  established  on  this  subject.  In  Eng- 
land they  occupy  a  large  portion  of  the  municipal  law 
affecting  the  rights  of  husband  and  wife  ;  and  the  same  doc- 
trines have  been  adopted  to  some  extent  in  most  of  the 
United  States,  but  their  importance  has  lately  been  greatly 
lessened,  and  their  application  to  our  society  destroyed,  by 
legislation  far  more  sweeping  and  radical  than  any  of  the 
imiovatious  of  the  equity  judges. 

§  757.  "While  this  legislation  has  been  adopted  at  com- 
paratiyely  recent  periods  by  most  of  our  commonwealths, 
and  while  its  principles  and  tendencies  are  the  same  in  all, 
there  is  but  little  similarity  in  its  details.  A  very  few  of 
the  States  still  presei"ve  the  common  law  doctrines  un- 
touched except  by  the  modifications  introduced  by  the 
courts  of  equity.  In  others,  these  modifications  have  been 
incorporated  into  the  statute  book.  In  others  still,  the 
wife's  property  is  made  free  from  the  effect  of  the  husband's 
debts,  but  is  left  wholly  or  partially  under  his  control ; 
while  in  many,  the  wife  is  clotlied  with  absolute  ownership 
over  all  her  possessions  as  though  she  were  a  single  woman. 
The  legislation  of  the  State  of  Xew  York  may  be  taken  as 
an  example  of  this  latter  class,  for  it  is  the  most  marked  in 
its  character  of  any,  and  most  defiantly  attacks  all  the  time- 


444  PERSONS   AND   PEKSONAL   EIGHTS. 

honored  principles  of  our  common  law.  By  statutes  of  that 
State  passed  in  the  years  184S,  1849,  1860  and  1862,  it  is 
enacted,  that  all  property  real  and  personal  of  every  descrip- 
tion belonging  to  the  wife  at  the  time  of  her  marriage,  or 
which  may  accrue  to  her  after  marriage,  including  her 
earnings  acquired  in  business,  is  absolutely  her  own,  en- 
tirely free  from  all  control  or  claim  of  her  husband,  and 
under  her  management  as  though  she  were  unmarried.  As 
such  owner,  she  has  complete  power  to  sell  and  dispose  of 
it  in  an}"  manner,  to  make  contracts  concerning  it,  and  to 
bequeath  and  devise  it  by  will,  without  her  husband's  con- 
sent. She  may  also,  in  her  own  name,  carry  on  any  busi- 
ness or  trade,  and  the  profits  will  be  hers,  and  the  losses 
will  fall  upon  her  property  and  will  not  prejudice  that  of 
the  husband.  She  may  bring  all  suits  in  her  own  name, 
either  to  enforce  her  rights  of  ownership  or  to  recover  dam- 
ages for  any  injuries  to  her  person,  reputation,  or  property, 
and  the  amounts  so  recovered  belong  to  her.  Suits  may 
also  be  brought  against  her,  without  joining  the  husband 
as  a  party,  and  sliould  judgment  be  recovered,  an  execu- 
tion may  be  issued  to  enforce  the  demand  out  of  her  sepa- 
rate estate.  Her  contracts  made  in  respect  to  her  own 
property  are  not  binding  upon  the  husband,  nor  can  lie  by 
any  act  defeat  or  injure  her  rights  of  ownership.  The  hus- 
band is  still  left  under  the  common  law  obligation  to  sup- 
port her,  and  she  still  is  entitled  to  her  dower  in  his  lands. 

§  758.  These  several  provisions  plainly  have  the  effect  to 
render  marriage  a  mere  union  for  the  production  and  man- 
agement of  children.-  As  to  their  other  legal  relations,  the 
husband  and  wife  have  not  even  the  united  interests  of  a 
partnership ;  for  in  that,  the  several  partners  embark  their 
property  together,  and  each  is  bound  to  promote  the  advan- 
tage of  the  whole,  and  to  increase  the  common  fund,  which 
is  to  be  divided  among  them.  But  the  ftimily  in  New  York 
lias  no  such  community  of  interests.  The  husband  is  still 
the  nominal  head  of  the  household ;    he  determines  their 


FRENCH    LAW    OF   MAKKIAGE.  445 

domicil ;  he  mnst  provide  for  their  maintenance ;  but  one 
of  the  greatest  safeguards  to  a  complete  unity  of  sentiments, 
of  hopes,  of  plans,  and  of  labors,  is  utterly  destroyed.  To 
have  been  entirely  consistent  in  their  work  of  change,  it 
would  seem  that  the  legislature  should  have  required  the 
wife  to  contribute  from  her  j)roperty  towards  the  support 
of  herself,  her  husband,  and  her  children.  The  State  of 
Louisiana  has  adopted  a  system  entirely  unlike  that  of  the 
common  law,  or  that  embodied  in  recent  statutes  of  New 
York.  It  is  substantially  borrowed  from  the  provisions  of 
the  French  Code  Civil  regulating  marital  rights.  Texas 
and  California  have  to  some  extent  followed  the  legislation 
of  Louisiana. 

§  759.  3.  The  French  Law  of  Marriage. — It  will  be 
instructive  to  compare  that  portion  of  our  municipal  law 
which  defines  the  rights  and  duties  of  the  parties  in  tlie 
marriage  relation,  with  the  law  of  other  countries,  which 
may  be  based  upon  different  principles,  and  expressive  of 
different  ideas.  The  provisions  of  the  French  Code  Civil 
afford  the  most  suitable  opportunity  for  such  comparison, 
especially  as  they  form  the  foundation  of  the  legislation  of 
some  American  States.  I  will  therefore  add  an  abstract  of 
the  general  features  of  this  department  of  the  French  law, 
BO  as  to  exhibit  its  essential  characteristics,  without  attempt- 
ing to  give  the  minuter  details  which  provide  for  pa,rticular 
cases. 

§  Y60.  The  Code  Civil  establishes  certain  general  rules 
to  govern  all  marriages  which  are  not  expressly  excepted 
from  their  operation  by  a  marriage  contract.  It  also  per- 
mits parties  contemplating  marriage  to  enter  into  a  formal 
written  agreement,  in  which  they  may  make  other  provi- 
sions respecting  their  property.  These  contracts  cannot, 
however,  interfere  with  any  of  the  personal  rights  and  duties 
of  the  spouses  as  established  by  law,  but  are  analogous  to 
the  marriage  settlements  used  in  England.     "When  no  ante- 


446  PERSONS   AND    PERSONAL   RIGHTS. 

nuptial  contract  has  been  made  at  all,  or  none  expressly 
waiving  these  provisions  of  the  law  and  adopting  others, 
the  code  creates  a  community  of  goods,  or  partnership,  be- 
tween the  husband  and  wife  in  respect  to  their  property, 
whicli  is  governed  either  by  the  general  law,  or  by  special 
stipulations  of  their  contract.  The  contemplated  husband 
and  wife  may,  however,  by  their  solemn  agreement  refuse  to 
place  their  property  in  common,  leaving  it  the  separate 
estate  of  each,  or  the  wife's  property  may  be  settled  upon 
her  as  dowry.  Tliese  three  cases  will  be  described  sepa- 
rately. 

§  761.  Community  or  partnership  of  property  between 
husband  and  wife  exists  in  all  cases  except  when  the  con- 
trary is  expressly  agreed  by  them.  In  tliis  partnership  are 
included  all  the  personal  property  belonging  to  either  spouse 
at  the  time  of  marriage ;  all  that  comes  to  either  of  them 
during  the  marriage  by  inheritance  or  donation,  unless  the 
donor  otherwise  orders  ;  all  the  gains  and  profits  and  fruits 
of  industry  acquired  by  either ;  and  all  immovable  prop- 
erty bought  within  the  same  time.  Immovables  owned  by 
either  party  at  the  commencement  of  the  wedlock,  and 
those  inherited  or  donated,  do  not  enter  into  this  com- 
munity, but  remain  the  separate  estate  of  the  one  to  whom 
they  belong.  This  common  property  is  chargeable  in  gen- 
eral with  the  debts  owed  by  each  party  at  the  date  of  the 
marriage,  and  with  those  contracted  by  the  husband,  or  by  the 
wife  with  the  husband's  consent,  while  the  partnership  lasts. 

§  762.  While  the  ownership  of  the  husband  and  wife  in 
this  common  property  is  equal,  they  have  not  the  same 
right  of  control  over  it.  He  alone  manages  it,  and  may  sell 
or  pledge  it  without  her  consent.  He  has  also  the  manage- 
ment of  all  her  separate  property  which  is  not  included  in 
the  community,  but  cannot  dispose  of  her  lands  in  such  con- 
dition, without  her  consent.  On  the  other  hand  the  wife 
can  neither  bind  herself  nor  the  partnership  until  she  has 
been  authorized  to  do  so  by  law. 


FRENCH    LAW    OF   MARRIAGE.  447 

§  763.  This  community  of  goods  between  husband  and 
wife  is  dissolved  by  the  death  of  either,  by  a  divorce,  by  a 
judicial  separation  similar  to  our  limited  divorce,  and  by  a 
judicial  proceeding  instituted  by  the  wife  to  terminate  the 
partnership.  After  the  dissolution,  the  specific  claims  of 
the  husband  and  wife  upon  the  common  fund,  arising  from 
any  cause,  are  first  satisfied,  those  of  the  wife  taking  pre- 
cedence. When  the  dissolution  is  the  result  of  death,  the 
heirs  of  the  deceased  succeed  to  all  of  his  or  her  rights  in 
respect  to  the  property.  These  deductions  having  been 
made,  the  residue  of  the  fund  is  equally  divided  between 
the  two  married  parties,  or  between  the  survivor  of  them 
and  the  heirs  of  the  one  deceased,  and  one  half  of  the  debts 
of  the  partnership  are  chargeable  upon  each  of  the  two  per- 
sons, or  classes  of  persons,  who  liave  shared  the  property. 
At  the  dissolution,  the  wife  has  also  the  right,  under  certain 
restrictions,  to  renounce  her  interest  in  the  partnership,  in 
which  case  she  abandons  all  claims  upon  the  common  prop- 
erty, except  for  her  wearing  apparel,  and  is  freed  from  all 
liability  for  its  debts.  Persons  entering  into  the  marriage 
relation,  and  adopting  the  community  of  goods,  may  still 
variously  modify  these  equirements  of  the  law  by  special 
contract.  Among  the  changes  so  made  the  following  are 
the  most  important ;  that  the  community  shall  only  em- 
brace purchased  property  ;  that  it  shall  only  include  that 
owned  at  the  date  of  .the  marriage,  or  that  subsequently 
acquired ;  that  lands  shall  be  included  in  it  in  the  same 
manner  as  personal  property ;  that  the  parties  shall  pay 
their  debts  separately  before  marriage  ;  and  that  they  shall 
have  unequal  shares  at  the  dissolution. 

§  764.  In  the  class  of  marriages  termed  dotal,  in  which 
the  community  of  goods  is  rejected,  the  dowry  is  the  sepa- 
rate estate  which  the  wife  brings  to  the  husband,  and  which 
is  irrevocably  settled  upon  her  by  the  nuptial  contract. 
This  dowry  may  include  all  of  her  present  and  future 
property,    or  her  present   property   alone,   or   a    part   of 


448  PEKSONS   AND   PERSONAL   EIGHTS. 

it,  or  eveu  a  single  article.  The  husband  lias  the  entire 
management  of  it  during  the  marriage,  and  may  enjoy  its 
proceeds  and  profits.  Lands  included  in  the  dowry  can- 
not in  general  be  sold  or  pledged  during  the  marriage, 
either  by  the  husband,  or  by  the  wife,  or  by  both  act- 
ing together.  To  this  rule  there  are  some  exceptions,  prin- 
cipally intended  to  relieve  the  wife  in  her  necessities,  and 
aid  her  in  the  support  of  herself  and  family.  At  the  dis- 
solution of  the  marriage  from  any  cause,  the  husband  or  his 
heirs  are  bound  to  restore  the  dowry  to  the  wife  or  her 
heirs.  There  is  another  class  of  marriages,  in  which  the 
property  of  the  parties  does  not  enter  into  community,  nor 
is  the  separate  estate  of  the  wife  settled  upon  her  as  dowr}'', 
but  it  is  not  necessary  to  describe  them  more  particularly. 

§  765.  In  respect  to  their  personal  riglits  and  duties, 
married  persons  assume  the  obligation  of  nourishing,  sup- 
porting, and  bringing  up  their  children.  They  owe  to  each 
other  fidelity,  succor,  and  assistance.  The  husband  owes 
protection  to  the  wife  and  the  wife  obedience  to  her  hus- 
band. He  determines  the  domicil,  and  is  bound  to  furnish 
her  with  necessaries  suitable  to  his  means  and  station.  The 
wife  cannot  sue  or  be  sued  in  her  own  name,  nor  in  general 
enter  into  contracts,  without  his  consent,  but  upon  his  re- 
fusal, she  may  be  authorized  by  a  judge  to  do  either  of  these 
acts.  She  may  cany  on  a  separate  business,  so  as  to  be- 
come a  public  trader,  in  which  case  she  may  bind  herself  in 
relation  to  her  trade  without  her  husband's  consent,  or  even 
bind  him,  if  a  community  of  goods  exists  between  them. 
She  may  make  a  will  without  his  authority. 

§  7Q6.  The  French  law  of  community  of  goods  between 
husband  and  wife,  is  seen,  by  the  foregoing  outline,  to  be 
quite  com})licated,  but  its  provisions  are  certainly  more  just 
than  those  of  the  English  common  law,  for  they  respect  the 
M'ife's  rights  of  ownership,  and  do  not  compel  her  to  yield 
all  her  possessions  into  the  absolute  dominion  or  complete 
control  of  the  husband,  and  at  the  same  time  they  are  more 


PARENT   AND   CHILD.  »        449 

politic  than  tlie  recent  legislation  of  many  of  the  American 
States,  for  they  preserve  the  nnity  of  interests  in  the  hus- 
band and  wife,  and  have  a  strong  tendency  to  influence 
each  party  to  labor  with  a  common  design  to  promote  the 
material  welfare  of  the  family. 

II.    PARENT  AND  CHILD. 

§  767.  The  perfected  family,  consisting  of  husband  and 
wife  and  their  offspring,  is  the  source  of  many  legal  rights 
and  duties  resulting  from  the  parental  relation,  and  of  many 
more  moral  obligations  which  our  law  does  not  attempt  to 
enforce,  but  leaves  to  the  influence  of  natural  afiection. 
The  municipal  law  takes  cognizance  only  of  those  rights 
which  it  assumes  power  to  make  efi"ective  by  its  remedial 
measures,  and  to  these  alone  our  attention  will  be  directed. 
We  are  then  to  enquire  what  are  the  general  legal  rights, 
powers,  and  duties  of  parents  and  of  children. 

§  768.  1.  The  Parent. — The  moral  responsibilities  which 
rest  upon  parents  are  of  the  most  weighty  character,  and 
to  some  of  them  the  law  adds  its  sanctions.  In  thus  de- 
manding from  the  parents  a  compliance  with  certain  re- 
quirements, the  law  looks  chiefly  to  the  father  as  the  one 
who  is  charged  with  duties,  and  clothed  with  powers.  As 
he  is  the  head  of  the  family,  it  is  just  that,  during  his  life, 
he  should  bear  whatever  burdens,  and  assume  whatever 
prerogatives,  may  be  connected  ^vith  his  position.  At  his 
death,  some  of  his  functions  pass  to  the  mother,  and  her 
powers  have  been  variously  altered  and  enlarged  bv  the 
statutes  of  many  of  the  American  States, 

§  769'  The  legal  relations  between  parent  and  child  con- 
tinue from  the  latter's  birth  until  it  arrives  at  the  asre  of 
twenty-one,  and  then  absolutely  cease.  The  foundation  of 
these  relations  is  the  duty  resting  upon  the  parent  to  sup- 
port his  ofi'spring.  This  support  is  not  limited  to  a  bare 
maintenance,  but  it  must  be  suitable  to  the  situation  and 
29 


i50       .  PERSONS   AND   PERSONAL   EIGHTS. 

means  ^f  the  parties.  As  the  law  regards  its  subjects  only 
as  members  of  society,  and  endeavors  to  protect  that  so- 
ciety, as  far  as  possible,  from  injury,  it  requires  the  parent 
to  educate  his  children,  so  as  to  fit  them  for  their  social  du- 
ties. These  demands  of  the  law  might  have  little  power 
over  their  objects,  unless  some  means  were  devised  to  en- 
force them,  and  this  is  done  by  making  the  parent  liable 
for  such  necessaries  for  support  and  education,  as  may  be 
furnished  to  a  child  whom  he  has  abandoned  or  neglected. 
He  is  not  however  bound  even  for  necessaries  furnished  to 
a  child  who  lives  in  his  family,  except  when  an  actual  au- 
thority to  procure  the  articles  may  be  inferred ;  and  this 
would  be  entirely  a  question  of  fact,  depending  upon  the 
circumstances  of  each  case.  The  duty  of  support  ceases 
when  the  child  has  attained  his  majority,  and. the  law  does 
not  compel  the  parent  to  leave  any  property  to  his  children, 
either  infant  or  adult,  upon  his  death,  or  to  make  any  provis- 
ion for  their  maintenance. 

§  770,  Corresponding  with  these  duties  are  the  rights  to 
control  the  persons  of  the  children  under  age,  to  demand 
and  receive  their  labor  and  services  in  the  famUy,  and  to 
appropriate  their  earnings.  But  when  a  minor  child  has 
been  suffered  ];>ermanently  to  dejiail  from  the  household, 
and  to  support  himself  by  his  own  industry,  so  that  a  dis- 
charge from  the  parental  power,  called  emancipation,  will 
be  inferred  as  a  matter  of  fact,  his  earnings  become  his 
own,  and  his  father  loses  his  legal  claim  to  them.  The 
parents  do  not  as  such  possess  any  power  of  control  over 
their  children's  property,  but  generally  have  the  prior  right 
to  be  appointed  the  guardians,  and  in  that  relation  to  man- 
age it. 

§  771.  2.  The  Child. — The  children  owe  to  their  parents 
obedience  and  assistance  during  their  minority,  and,  if  not 
emancipated  by  an  act  of  the  father,  their  services  and  earn- 
ings are  his.  "When  the  child  has  attained  his  majority 
this  duty  of  contributing  his  labors  to  the  aid  of  the  family 


INFANTS.  451 

ceases,  and  the  law  does  not  in  general  lay  upon  adult 
children  any  obligation  to  support  their  parents.  In  this 
respect  the  French  law  differs  from,  and  is  greatly  superior 
to  our  own,  for  it  declares  that  children  of  any  age  owe  a 
maintenance  to  their  fathers  and  mothers  and  other  ancestors 
who  are  in  want,  proportionate  to  the  necessity  of  the  party 
who  claims  it,  and  to  the  fortune  of  the  one  who  grants  it. 
Sons-in-law  and  daughters-in-law  are  placed  under  the  same 
liability  toward  their  fathers-in-law  and  mothers-in-law. 

§  772.  Children  under  the  age  of  twenty-one  are  termed 
infants,  and,  from  a  tender  regard  to  their  interests,  are  de- 
prived of  many  civil  powers  which  belong  to  persons  of  full 
age.  They  are  in  general  disabled  from  entering  into  valid 
contracts,  making  sales  and  purchases  of  property,  incur- 
ring debts,  or  doing  other  acts  which  shall  be  binding  upon 
them  either  during  or  after  the  term  of  their  pupilage. 
The  acts  of  an  infant,  which  would  in  other  cases  create  a 
legal  responsibility,  are,  as  to  them,  either  absolutely  void, 
or  simply  voidable.  When  voidable  in  their  nature,  they 
must  be  ratified  or  disavowed  by  the  party  after  he  arrives 
at  age,  in  which  case  the  ratification  or  disafiirmance  relates 
back  to  the  time  of  the  transaction,  and  renders  it  either  a 
complete  legal  obligation  or  a  nullity.  It  is  by  no  means 
always  easy  to  determine  whether  any  particular  act  of  an 
infant  shall  be  included  in  one  or  the  other  of  these  classes. 
A.8  a  general  rule,  whatever  may  confer  a  benefit  upon  him 
will  be  considered  as  voidable  only.  Contracts  for  neces- 
saries, however,  made  by  an  iilfaut  not  living  with  a  parent 
or  guardian,  may  be  enforced  against  him,  and  he  is  thus 
legally  liable  for  food,  clothing,  medical  aid,  and  education 
suitable  to  his  station,  furnished  at  his  request ;  but  if  he 
live  with  a  parent  or  guardian,  he  cannot  bind  himself  even 
for  such  supplies.  Liability  for  the  commission  of  crimes  is 
not  discharged  by  the  mere  fact  of  infancy,  but  rests  even 
upon  young  children  who  are  of  suflicient  age  and  intelli- 
gence to  understand  the  nature  of  the  acts  done  by  them. 


i53  PERSONS   AXD   PERSONAL   RIGHTS, 

The  various  rules  of  our  law  in  reference  to  the  parental 
relation  are  plainly  all  derived  from  the  principle  of  afford- 
ing protection  to  the  child,  and  of  conferriug  authority  upoti 
the  parent  sufficient  for  that  purpose. 

III.    GUARDIAN  AND  WARD. 

§  773.  "When  the  father  dies  leaving  infant  children,  and 
the  protection  of  the  family  head  is  thus  withdrawn  from 
them,  his  place  is  supplied  by  a  guardian,  who  exercises 
some  of  the  paternal  powers  over  the  persons  and  property 
of  the  minors,  who  are  known  as  his  wards.  A  guardian 
is  also  necessary,  even  during  the  lifetime  of  the  father,  to 
take  charge  of  such  property  as  an  infant  may  possess  in  his 
own  right.  These  substitutes  for  the  natural  protector  of 
the  family  are  of  very  ancient  origin.  Among  the  Romans 
they  were  called  Tutors,  and  were  appointed  by  the  last 
will  of  the  deceased,  or  by  a  judicial  magistrate,  or  succeeded 
to  their  office  as  a  matter  of  right  from  their  relationship  to 
the  children.  During  the  prevalence  of  feudalism  in  its 
pm-ely  military  aspect,  the  lord  was  the  guardian  of  the 
infant  heirs  of  his  deceased  vassals.  After  the  severity  of 
the  military  rules  was  mitigated,  and  soccage  tenures  became 
common,  the  right  of  guardianship  devolved  by  law  upon  the 
nearest  relation  by  blood  to  the  child,  to  whom  the  inheri- 
tance could  not  possibly  descend  ;  and  therefore  if  land  de- 
scended to  the  heir  on  the  part  of  the  father,  the  mother  or 
other  next  relative  on  the  part  of  the  mother  was  clothed 
with  the  duty  ;  but  if  the  land  descended  from  the  mother, 
the  father  or  his  next  of  blood  became  guardian. 

§  774.  These  remains  of  the  old  English  law  do  not  exist 
in  this  country,  and  we  have  only  two  species  of  guardians 
borrowed  from  the  Roman  jurisprudence,  those  designated 
by  a  last  will,  and  those  appointed  by  a  court.  A  father 
may  name  a  guardian  over  the  estate  and  persons  of  his 
minor  children  in  his  last  will,  and  the  rights  and  duties  so 
confeiTed  will  continue  until  <he  wards  arrive  at  the  age  of 


GUAEDIAN8.  453 

twenty-one.  The  English  Court  of  Chancery  and  the  Equity 
Courts  of  the  United  States  have  long  exercised,  as  a  part 
of  their  peculiar  functions,  a  special  care  and  control  over 
the  interests  of  infants,  and,  as  a  necessary  consequence,  have 
acquired  a  jurisdiction  to  supply  the  loss  sustained  by  the 
death  of  a  father.  The  Surrogate  Courts,  Probate  Courts,  Or- 
phans' Courts,  and  other  tribunals  created  by  statute  in  the 
several  American  States,  to  superintend  the  settlement  of 
the  aflFairs  of  deceased  persons,  are  clothed  with  the  same 
jurisdiction.  The  exercise  of  this  judicial  power  is  very  fre- 
quent, and  by  far  the  greater  number  of  guardians  derive 
their  authority  from  some  one  of  these  courts.  Classes  of 
persons  are  designated  by  statutes  in  all  or  most  of  the  States, 
from  which  the  selection  must  be  made  in  order,  the  prefer- 
ence being  given  to  the  mother,  and  after  her  to  other  near 
relatives. 

§  7Y5.  The  person  thus  appointed,  whether  by  will  or  by  a 
judge,  as  far  as  possible  takes  the  place  of  the  father.  He  has 
control  over  the  person  of  the  -ward,  and  must  superintend 
his  education,  but  is  not  bound  to  furnish  a  support  out  of 
his  own  property.  He  is  a  trustee  of  the  real  and  personal 
estate  of  the  infant,  with  the  general  power  of  management, 
but  without  authority  to  sell  lands.  In  the  exercise  of  his 
duties  he  acts  in  some  measure  as  an  officer  of  the  Court  of 
Equity,  or  other  tribunal  which  appointed  him,  and  in  some 
cases  must  look  to  it  for  specific  directions,  and  in  all  cases 
must  so  conduct  himself  that  his  acts  will  meet  the  judicial 
approval.  In  the  discharge  of  his  tmst,  he  is  strictly  bound 
to  a  perfect  good  faith.  He  is  not  only  forbidden  to  use  the 
property  for  his  own  benefit,  but  is  liable  for  a  neglect  to 
manage  it  to  the  advantage  of  his  ward.  The  Equity  and 
Probate  Courts  have  complete  power  to  enforce  this  respon- 
sibility, by  calling  him  to  account,  at  any  time  during  the 
continuance  or  at  the  close  of  his  trusteeship,  and  ever  by 
removing  him  from  his  office  for  incompetence  or  unfaith- 
fulness. 


4:54  PERSONS   AND   PERSONAL   RIGHTS. 

IV.    MASTER  AND  SERVANT. 

§  776.  Tlie  relation  of  master  and  servant  is  generally 
elafesed  with  those  of  husband  and  wife,  and  parent  and 
child,  but  does  not  strictly  belong  in  that  division  of  the 
municipal  law.  The  legal  rights,  powers,  and  duties  of  hus- 
bands, wives,  and  children  are  the  necessary  incidents  of 
their  peculiar  status,  and  do  not  flow  from  any  agreement 
of  the  parties  themselves.  Tlae  law,  by  its  own  force,  sepa- 
rates them  from  society  at  large,  and  places  them  in  a  con- 
dition different  from  that  of  other  persons.  On  the  other 
hand,  the  relation  of  master  and  servant  is  entirely  a  crea- 
ture of  contract,  and  its  incidents  are  those  of  the  general 
law  of  contracts,  applied  to  the  particular  case  of  personal 
hiring.  The  only  species  of  civil  service  which  aflfects  the 
status  of  the  individuals  included  within  it,  is  slavery.  I 
shall  therefore  defer  the  consideration  of  this  subject  until 
1  treat  generally  of  the  obligations  which  arise  from  con- 
tracts. 


CHAPTER  n. 

OF      PROPERTY 


SECTION  I. 
OF  THINGS   WHICH   MAY  BE  THE   OBJECTS   OF   PROl'ERTY. 

§  777.  The  word  property  may  be  employed  in  two  very 
different  senses ;  and  tliat  we  may  clearly  nnderstand  the 
subjects  embraced  in  tbis  chapter,  we  should  carefully  dis- 
tinguish these  meanings,  and  having  adopted  one  of  them, 
restrict  ourseh^es  to  it.  As  often  used,  it  refers  to  the 
things  themselves  which  are  the  objects  of  ownership.  We 
thus  speak  of  real  and  personal  property,  meaning  lands  and 
goods.  Strictly,  however,  the  term  denotes  the  dominion 
or  ownership  which  may  be  exercised  over  things.  These 
two  significations  are  indiscriminately  given  to  the  word  in 
many  standard  treatises  of  English  and  American  law.  The 
writers  on  Roman  law,  however,  never  confound  subjects  so 
entirely  different,  and  are  careful  to  discriminate  between  the 
thing  which  is  the  object  of  property,  and  property  itself. 

§  778.  Using  the  word  in  this  strict  sense,  I  shall  en- 
deavor to  present  an  outline  of  the  law  of  property,  so  as 
to  give  a  comprehensive  view  of  its  general  princij)les, 
while  many  of  the  particulars  in  which  these  principles 
have   been  applied,  will   be  passed  over  in  silence.      To 


^o6  OF   PROPEETT. 

this  end  I  shall  treat,  1st,  of  the  things  which  mav  be  the 
objects  of  property,  and  their  generic  classes  ;  2d,  of  the 
methods  bj  which  property  may  be  acquired  and  parted 
with  ;  and  3d,  of  the  different  kinds  and  degrees  of  property 
in  things,  recognized  and  regulated  by  our  municipal  law. 
I  have  then  in  the  present  section  to  describe  the  things 
which  may  be  the  objects  of  property,  and  their  generic 
classes  as  established  by  law. 

§  779.  Some  things  are  not  capable  of  being  owned. 
The  law  does  not  permit  any  exclusive  dominion  over  them, 
any  such  right  in  one  person  as  debars  others  from  the  same 
privileges.  It  recognizes  and  protects  a  right  to  use  and 
enjoy ;  bnt  that  use  and  enjoyment  ended,  the  thing  must 
be  abandoned  to  all  mankind.  The  air  and  running  water 
are  examples  of  this  class.  But  almost  all  existing  and  pos- 
sible material  things,  and  rights  connected  with  or  growing 
ont  of  them,  are  admitted  to  be  objects  of  individual  owner^ 
ship.  A.ny  inquiry  into  the  origin  of  this  universal  right 
of  property  would  be  foreign  to  the  design  of  this  work,  and 
belongs  rather  to  treatises  on  natural  law. 

§  7S0.  The  English  and  American  municipal  law  sepa- 
rates the  things  which  are  the  objects  of  property,  into  two 
generic  classes ;  those  which  are  called  personal,  or  mov- 
ables ;  and  those  which  are  called  real,  or  immovables. 
This  division  is  not  merely  formal,  for  the  methods  of  ac- 
quiring and  transfeiTing  dominion  in  things  real  and  things 
personal,  and  the  species  of  ownership  which  may  be  exer- 
cised over  them,  are  very  different.  The  origin  of  the  deeply 
drawn  line  of  demarcation  between  movables  and  immov- 
ables has  already  been  explained  in  the  chapter  upon  the 
feudal  system. 

§  781.  1.  Things  xcMcK  are  personal. — The  English 
technical  term  for  this  class  is  chattels  ;  that  of  the  modern 
jurisprddence  of  continental  states  of  Europe  is  movables. 
In  it  are  included  all  things  movable  and  temporary  in 
their  nature,  and  which  may  therefore  be  spoken  of  as  at- 


THINGS   REAL.  457 

teuding  the  owner's  person,  and  also  some  species  of  inter- 
ests in  lands,  which,  though  not  strictly  movable,  are  con- 
sidered inferior  to  those  embraced  in  the  class  of  things  reaL 
Things  personal  are  convenientlr  subdivided  into  three 
subordinate  groups.  1.  The  first  consists  of  simple  chattels, 
such  as  goods,  animals,  money  and  all  other  objects  strictly 
movable  which  have  a  material  existence,  2.  The  second 
group  is  composed  of  those  interests  in  land  which  can  only 
last  for  a  certain  specified  time,  and  which  are  called  chat- 
tels real.  They  are  rights  over  lands  held  by  lease,  which 
must  terminate  at  the  end  of  a  given  number  of  years. 
Tliis  classification  of  interests  in  lands  with  mere  movables 
is  not  natm-al,  but  is  one  of  the  results  of  the  feudal  ideas, 
which  considered  all  estates  which  must  cease  at  a  certain 
time,  as  inferior  in  quality  to  those  whose  duration  was  un- 
certain. 3.  The  thu-d  subdivision  includes  objects  of  prop- 
erty which  have  no  material  existence,  and  which  are  termed 
things  in  action.  Tliey  do  not  consist  of  things  themselves, 
but  of  the  right  to  obtain  things,  and  reduce  them  to  ]30S- 
sessiou.  As  examples  of  this  class,  I  will  mention  debts  se- 
cured by  a  bond,  note,  or  any  other  contract  wiitten  or 
verbal,  and  damages  due  for  the  non-performance  or  other 
breach  of  a  contract,  or  for  any  wrong  which  may  be  legallv 
repaired  by  damages.  In  all  these  cases  it  is  not  the  money 
or  otlier  article  involved  in  a  tiling  in  action,  which  is  the 
object  of  property,  but  the  right  to  enforce  the  obligation 
and  obtain  that  money  or  other  material. 

§  7S2.  2.  Things  which  are  real. — The  things  embraced 
in  this  division  are  fixed  and  immovable  in  their  nature, 
and,  like  those  in  the  preceding  class,  may  be  either  ma- 
terial objects,  or  rights  conneeLed  with  and  growing  out  of 
them.  With  a  few  exceptions,  they  may  be  described  as 
land,  which,  in  its  legal  signification,  refere  not  only  to  the 
soil  of  the  earth,  and  whatever  is  found  in  its  bosom,  but 
to  all  that  is  permanently  affixed  to  its  surface.  In  addi- 
tion to  all  that  is  included  in  the  general  term  land,  some 


4:58  OF   PKOPERTY. 

movable  articles,  such  as  lieirlooms,  which  descend  to  the 
heir,  or  are  inherited,  are  also  considered  as  belonging  to 
the  class  of  real  things,  because,  though  not  actually  affixed 
to  the  soil,  thej  have  such  a  legal  connection  with  it,  that 
they  partake  of  all  its  properties.  This  latter  species  of  im- 
movables can  hardly  be  said  to  have  an  existence  in  fact 
in  the  United  States,  but  rather  belongs  to  a  different  con- 
dition of  society,  in  which  family  ties  and  family  traditions 
are  more  carefully  preserved  than  with  us. 

§  783.  The  immaterial  or  incorporeal  objects  of  property 
embraced  in  this  general  division,  are  rights  growing  out  of 
and  connected  with  lands.  Those  recognized  by  our  muni- 
cipal law  are  rent,  and  a  peculiar  class  of  interests  techni- 
cally known  as  easements.  Rent  is  a  certain  yearly  profit 
issuing  out  of  lands,  as  a  recompense  for  their  use  and  en- 
joyment. This  legal  term  should  be  carefully  distinguished 
from  the  common  use  of  the  same  word.  It  does  not  signify 
the  money,  or  other  articles  paid  by  the  occupant  to  the 
owner  of  the  land,  for  those  would  be  things  personal,  but 
the  right  in  the  owner  to  demand  and  receive  this  money, 
and  as  such  it  is  an  interest  connected  with  lands.  Ease- 
ments consist  in  certain  rights  belonging  to  one  person, 
which  interfere  with  the  land  or  buildings  of  another.  Of 
course  no  one  could  have  an  easement  growing  out  of  his  own 
land,  for  his  ownership  would  give  him  absolute  dominion 
over  the  soil  and  all  its  adjuncts,  to  use  them  at  his  own 
pleasure,  and  anything  which  under  other  cii'cumstances 
would  be  an  easement,  in  his  case  would  be  simply  an  exer- 
cise of  his  absolute  right  of  proprietorship.  The  most  com- 
mon and  important  of  easements  is  the  right  of  way,  which 
is  the  right  of  private  travel  over  another  man's  ground. 

§  784.  3.  A  third  class  of  things  are  sometimes  consid- 
ered as  real  and  sometimes  as  personal.  The  general  rule 
demands  that  whatever  is  affixed  to  the  soil  or  to  buildings, 
as  fences,  shelves  and  partitions  in  a  house,  and  the  like,  be- 
came a  part  of  the  land  itself.     To  "-his  there  have  been  ex- 


OF   ACQUIRING   PROPERTY.  469 

ceptioiis  introduced  by  the  judges  in  more  modern  times, 
to  promote  justice  and  especially  to  encourage  trade  and 
manufactures.  Many  things  may  thus  be  fastened  to  the 
ground  or  to  a  structure  by  an  occujr'ant  of  land,  and  still 
preserve  their  character  as  chattels.  Yet  under  some  cir- 
cumstances they  would  be  considered  as  a  part  of  the  real- 
ty. As  a  general  rule  when  such  articles  were  affixed  by  a 
former  proprietor,  on  his  death  they  accompany  the  land 
and  descend  to  the  heirs ;  but  if  they  were  erected  by  a 
tenant  or  lessee,  they  remain  personal  things,  and  may  be 
removed  by  him  and  do  not  pass  into  the  ownership  of  the 
landlord. 

Whatever  tilings  are  completely  separated  from  the  land, 
as  gathered  fi-uits  and  grains,  felled  trees,  quarried  stones, 
and  the  like,  change  their  character  and  become  movables. 


SECTION  11. 
METHODS    OF    ACQUIRING    PROPERTY    IN    THINGS. 

.  §  785.  From  defining  the  generic  classes  into  which 
things  are  divided,  a  natural  order  leads  us  to  consider,  in 
the  next  place,  the  modes  by  which  property  in  them  may 
be  acquired.  Some  of  these  methods  are  common  to  both 
classes,  others  are  appropriate  to  one  only.  Many  of  them 
possessing  points  of  resemblance,  they  may  be  arranged  in 
three  general  divisions.  The  first  division  embraces  those 
cases  where  a  person  acquires  property  entirely  by  his  own 
acts,  without  any  connection  with  or  transfer  from  another 
immediate  owner  ;  the  second,  those  cases  where  property  is 
acquired  on  the  occasion  of  the  death  of  a  former  owner ; 
and  the  third,  where  it  is  acquired  from  a  former  living 
owner.  The  latter  two  of  these  groups  frirnish  by  far  the 
greater  number  of  instances  of  the  transmission  and  acquisi- 
tion of  property. 


4:60  OF   PROPERTY. 


•VTHEKE  A  PERSON  ACQXJTRES  PROPEETT  ENTIRELY  BY  HIS  OWN  ACTS, 
■WTTHOUT  CONNECTION  ■WITH  OR  TRANSFER  FROM  ANY  OTHER  IM- 
MEDIATE  OWNER. 

§  786.  Property  may  thus  be  acquired  by  four  different 
methods ;  by  occupancy ;  by  prescription  ;  by  natural  in- 
crease ;  and  by  one's  own  labor.  These  modes  have  cer- 
tain common  features.  They  all  rest  for  their  efiScacy  upon 
the  acts  alone  of  the  one  who  acquires  property  ;  they  do 
not  depend  upon  any  transfer  actual  or  constructive  from  a 
prior  owner  ;  in  fact  they  make  no  reference  to  any  former 
right  of  property  in  another  person.  They  are  based  partly 
upon  principles  of  natural  law,  and  are  partly  the  results  of 
positive  legislation. 

§  787.  1.  Occupancy. — This  may  justly  be  considered 
the  most  ancient  of  all  modes  of  acquu'ing  property  in 
things,  and  as  the  very  foundation  of  all  private  ownership. 
It  involves  the  principle  of  natural  law  that  the  first  posses- 
sor of  any  thing  becomes  entitled,  by  that  act  of  possession, 
to  the  entire  control  and  dominion  over  it.  But  in  the 
legislation  of  civilized  countries,  when  society  is  settled,  and 
the  rights  of  individuals  are  clearly  defined,  mere  occupancy 
gives  place  to  other  and  more  formal  methods,  and  nearly 
disa[)pears.  Our  law  does  not  recognize  it  as  a  source  of 
property  in  immovables.  Whatever  lands  in  the  United 
States  are  not  allotted  to  individual  proprietors,  belong 
either  to  the  nation,  or  to  the  sei)arate  States.  Land  which 
Lad  been  the  object  of  private  property,  would  revert  to  the 
State,  if,  for  any  reason,  or  under  any  circumstances,  no 
pereons  could  be  found  in  whom  the  right  of  ownership 
legally  existed.  It  would  not  be  abandoned,  so  that  a 
stranger  might  occupy  and  thus  succeed  to  an  absolute  do- 
minion over  it.  This  return  of  land  to  the  Government  is 
called  escheat,  and  happens  when  an  owner  dies  without  a 
will,  and  without  heirs  who  can  legally  inherit  his  estate. 


« 


PRESCKIPTION. 


461 


But  mere  occupancy  still  gives  a  right  of  property  to  the 
finder  ^f  chattels  which  have  been  abandoned,  or  lost  and 
unreclaimed  by  a  former  owner.  To  the  same  source  must 
be  referred  the  right  of  ownership  which  rests  in  the  captor 
of  wild  animals. 

§  788.  2.  Prescription. — This  method  of  acquisition 
bears  a  general  resemblance  to  that  by  occuj)ancy,  but  is 
distinguished  from  it  in  one  very  important  particular.  By 
the  latter  a  title  or  right  to  the  thing  commences  at  once 
from  the  mere  fact  of  prior  possession  ;  by  the  former  a  long- 
continued  possession,  either  indefinite  in  time,  or  protracted 
through  a  fixed  period,  is  necessary  to  confer  absolute  prop- 
erty. Prescription,  therefore,  is  the  uninterrupted  posses- 
sion of  a  thing  by  one's  self,  or  ancestors,  or  predecessors, 
with  a  claim  of  pi'operty,  for  such  a  length  of  time  as  the 
law  requires  to  establish  complete  ownership.  Among  the 
Komans,  as  we  have  seen,  it  was  a  very  common  mode  of 
acquiring  property,  one  year's  possession  of  movables,  and 
two  of  lands,  being  anciently  deemed  sufiicient.  These 
periods  were  subsequently  much  enlarged. 

§  Y89.  Tlie  English  common  law  admitted  prescription 
as  a  source  of  ownership  only  in  those  rights  connected  with 
land  called  easements,  and  required  that  the  possession 
should  have  continued  from  a  time  beyond  the  memory  of 
man.  Thus  one  proprietor  might  enjoy  a  right  of  way  over 
his  neighbor's  ground,  because  he  and  his  ancestors  had 
exercised  the  privilege  time  out  of  mind,  and  the  property 
in  the  easement  would  be  as  absolute  as  tliongh  it  were 
based  upon  written  instruments.  The  statutes  of  all,  or 
nearly  all,  the  American  States  have  shortened  the  length 
of  time  necessary  to  establish  a  prescription,  and  have  re- 
duced it  to  a  definite  number  of  years,  in  most  instances  to 
twenty.  They  also  provide  that  the  uninterrupted  posses- 
sion of  land  for  the  required  period,  by  a  person  claiming  to 
be  owner,  shall  result  in  the  acquisition  of  a  complete  right 
of  property  by  tl  s  occupant.    Certain  other  statutes,  techni> 


iG'2  OF   PKOPEKTT. 

callj  known  as  tlie  statutes  of  limitations,  operate  in  the 
same  manner  to  confer  personal  rights,  and  even  j^roperty 
in  chattels  and  tilings  in  action,  after  a  continued  enjoyment 
for  a  shorter  period. 

§  790.  This  mode  of  acquisition  is  an  illustration  of  the 
care  which  the  law  takes  to  prevent  controversies  respecting 
ownership,  and  to  preserve  the  quiet  and  pe«ce  of  society. 
It  is  tlie  result  of  presumptions  inferred  from  numeroTis 
cases,  and  is  made  general  and  invariable  by  positive  legis- 
lation. It  is  deemed  better  for  society  that  occasional  injus- 
tice should  be  suffered  by  those  who  have  neglected  their 
rights,  than  that  long-continued  quiet  possession  should  be 
disturbed,  when  it  wculd  generally  be  impossible  to  explain 
all  the  circumstances  and  elicit  all  the  truth. 

§  791.  3.  Natural  Increase. — This  method  of  acquiring 
property  is  plainly  in  accordance  with  natural  justice. 
Whatever  one^s  own  land  and  movables  may  produce,  the 
fi'uits  of  the  soil,  the  increase  of  animals,  and  the  like,  be- 
long to  hira.  This  principle  is  so  evident  that  it  needs  no 
illustration.  The  Boman  law  and  the  European  jurispru- 
dence based  upon  it,  unite  this  mode  of  acquisition  with  the 
one  next  succeeding,  and  call  them  accession. 

§  792,  4.  Oniii  own  Labor. — ^Whatever  things  a  person 
produces  or  constructs  from  his  own  materials  by  means  of 
his  labor  are  clearly  his.  But  the  principle  is  extended 
further,  so  as,  in  some  instances,  to  include  the  materials  of 
another.  Thus  if  a  person  furnisliing  the  piincipal  ma- 
terials, should  by  liis  labor  unite  with  them  those  of  another 
in  the  manufacture  of  an  article,  the  whole  product  would 
belong  to  the  manufacturer.  This  doctrine  was  greatly 
elaborated  and  refined  by  the  Roman  jurists,  and  is  recog- 
nized by  our  own  law.  The  rale  would  seem  to  be  that 
the  property  in  the  accessories  should  accompany  that  in 
the  main  thing.  Our  law,  however,  does  not  suffer  one  per- 
son to  gain  property  in  another's  things  by  means  of  his 
labor,  when  they  were  originally  taken  by  fraud  or  wilful 


PKODUCTS   OF   MENTAL   LABOR.  463 

trespass.  Whatever  alteration  of  form  sucli  article  may 
have  undergone,  the  original  owner  may  reclaim  it  in  its 
new  shape,  if  he  can  establish  the  identity  of  the  materials. 
It  mnst  not  be  niiderstood  that  in  this  appropriation  of 
another's  things,  wliich  is  occasionally  permitted,  the  owner 
is  left  without  any  remedy  against  the  manufacturer.  He 
loses  indeed  his  right  of  property,  his  power  to  take  the 
specific  article,  but  he  may  still  demand  and  recover  its 
value. 

§  Y93.  It  would  seem  that  the  products  of  mental  exer- 
tion should  possess  the  same  legal  characteristics  as  those  of 
manual  labor,  and  should  be  invested  with  tlie  attribute  of 
property  in  the  author.  But  this  is  not  so.  The  common 
law  does  not  confer  upon  inventors  or  authors  any  right  of 
ownership  over  their  productions.  We  must  understand 
what  is  intended  by  property  in  an  invention,  a  writing,  or 
other  result  of  thought.  It  is  not  mere  ownership  over  the 
materials  of  which  a  new  machine  is  composed,  or  over  a 
manuscript,  or  a  printed  book.  Over  these  the  common 
law  gives  a  perfect  dominion,  with  fall  power  of  use  and 
disposition.  Property  in  the  product  of  intellectual  labor 
is  something  more  intangible  than  this.  Its  existence  as- 
sumes a  difl'erence  between  the  results  of  thought,  and  the 
material  objects  in  which  those  results  are  ineoj'porated  and 
made  accessible.  ISTow  while  the  common  law  of  England 
admitted  a  complete  right  of  ownership  in  these  latter  ma- 
terial objects,  it  denied  any  exclusive  proprietorship  in  the 
more  valuable  results  themselves  of  mental  efibrt,  separate 
from  the  tangible  medium  in  which  they  were  embodied. 
Tlius  after  an  author  had  written  and  published  a  book,  all 
other  persons  had  a  right  to  appropriate  his  labors  and  copy 
and  publish  the  same  work.  After  an  inventor  had  per- 
fected his  improvement,  all  other  persons  could  adopt  the 
same  methods,  and  construct,  use,  or  sell  the  same  machine. 
But  the  manifest  injustice  of  this  rule  of  the  ancient  law 
was  long  ago  corrected  in  England  and  America  by  statutes, 


464  OF  PROPEKTT. 

which  give  to  prior  inventors  an  exclusive  right  to  make, 
use,  or  sell  their  inventions  when  patented,  and  to  authors 
the  same  authority  to  publish  and  vend  the  works  of  which 
they  have  secured  the  copyright.  The  methods  of  securing 
patents  and  copyrights  are  entirely  regulated  by  these  stat- 
utes, but  it  is  not  necessary  to  describe  them  here. 

n. 

WHEN  PROPERTY   IS  ACQUIRED   ON  THE   OCCASION   OP  THE  DEATH  OP 
THE   FORMER   OWNER, 

§  794.  At  the  death  of  an  owner  of  things  real  or  per- 
sonal, his  rights  of  property  must  pass  to  some  other  per- 
sons. This  transfer  may  be  eflected  in  either  of  two  meth- 
ods. He  may  himself  control  it  by  will,  and  designate  the 
individuals  who  shall  succeed  to  the  estate,  and  what  rights 
they  shall  acquire  in  it ;  or  in  the  absence  of  a  will,  the  law 
points  out  the  persons  to  whom,  and  the  modes  by  which, 
the  ownership  shall  descend.  There  are  then  two  cases  to 
be  separately  considered  under  this  division  :  1st,  when  the 
owner  dies  intestate ;  and  2d,  when  he  leaves  a  last  will 
and  testament. 

§  795.  1.  In  case  of  Intestacy. — The  municij)al  law  of 
England  and  of  the  American  States  most  plainly  exhibits 
the  distinction  between  things  real  and  things  personal,  in 
the  very  different  rules  which  it  provides  for  their  disposi- 
tion on  the  death  of  an  owner  intestate.  The  origin  of  these 
methods  has  been  explained  in  the  chapter  upon  the  feudal 
system.  The  descent  of  lands  to  the  heirs  is  regulated  by 
principles  derived  from  the  feudal  polity.  The  succession 
to  movables  is  governed  rather  by  rules  boiTowed  from  the 
Roman  law.  Following  this  line  of  separation,  which  the 
law  itself  draws,  I  shall  speak  1st,  of  acquiring  property  in 
things  personal  in  the  case  of  intestacy ;  and  2d,  of  the  de- 
scent of  things  real  to  the  heirs  of  an  intestate  owner. 

§796.  (1.)  Of  acquiring  2>roj>trty  in  things  personal.,  in 
the  case  of  intestacy. — Property  in  the  movables  of  an  in- 


APPOINTMENT  OF  ADMINISTRATORS.  465 

testate  does  not  pass  at  once  to  those  who  will  be  the  ulti- 
mate owners,  but  rests  primarily  in  a  trustee,  called  an  ad- 
ministrator, who  is  charged  with  the  duty  of  settling  the 
affairs  of  the  deceased,  paying  his  debts,  and  distributing 
the  remaining  surplus  to  those  persons  who  are  entitled 
by  law  to  receive  it.  This  whole  process  is  the  creature 
of  statutes  in  England  and  America.  Yery  anciently  the 
English  king  seems  to  have  succeeded  to  the  personal  es- 
tates of  those  who  died  intestate  within  the  realm  ;  subse- 
quently the  bishops,  in  virtue  of  their  ecclesiastical  power, 
assumed  control  over  them,  and  were  nominally  bound  to 
settle  and  distribute  them.  At  length,  in  the  reigns  of 
Edward  III.  and  Henry  YIIL,  statutes  were  passed  which 
adopted  methods  substantially  the  same  as  those  existing  in 
England  and  America  to  this  day.  The  bishops,  instead  of 
attending  themselves  to  the  management  of  the  personal 
estates  of  the  dead,  were  directed  to  make  appointment  of 
administrators  to  discharge  this  duty. 

§  797.  In  England  the  trnstees  are  still  named  by  the 
ecclesiastical  courts  ;  in  the  United  States  the  power  of  ap- 
pointment is  committed  to  the  Surrogate,  Probate  Courts, 
or  other  special  tribunals  which  have  cognizance  of  such 
matters.  By  the  English  law  the  administrator  must  be 
generally  selected  from  certain  special  classes  of  persons, 
including  the  kindred  and  creditors  of  the  deceased.  The 
statutes  above  referred  to  provide  that  on  the  death  of  the 
wife,  the  appointment  is  given  to  the  husband  ;  on  the  death 
of  the  husband,  to  the  widow  or  to  the  next  of  kin  ;  on  the 
death  of  an  unmarried  person,  to  the  next  of  kin.  Among  the 
next  of  kin,  those  in  the  nearest  degree  are  preferred  before 
those  more  distantly  related,  and  these  degrees  are  reckoned 
according  to  the  Roman  law  as  explained  in  a  former  chapter, 
children  and  parents  being  in  the  iirst  degree,  brothers  and 
sisters,  grandparents  and  grandchildren  being  in  the  second, 
and  the  third  including,  among  others,  uncles  and  aunts, 
nephews  and  nieces.  Among  the  relatives  in  the  same  degree 
30 


466  OF  PKOPERTT. 

the  choice  is  unrestricted,  except  that  children  are  taken  be- 
fore parents.  The  order  of  selection  after  the  widow,  would 
then  be  as  follows :  children,  parents,  brothers  or  sisters, 
i;;randparents,  uncles  or  aunts,  nephews  or  nieces,  cousins. 
When  there  are  no  kindred,  or  none  that  will  accept  the 
trust,  recourse  is  had  to  a  creditor  of  the  deceased,  and  in 
the  absence  of  creditors,  to  any  other  competent  person. 
"While  the  several  States  have  substantially  adopted  this 
English  system,  they  have  all  doubtless  made  some  modifi- 
cations in  the  order  of  the  classes  entitled  to  the  appoint- 
ment. In  Kew  York  administration  must  be  granted  to 
the  widow  and  next  of  kin,  or  to  some  one  of  them,  if  they 
will  accept,  in  the  following  order  :  1st,  to  the  widow  ;  2d, 
children ;  3d,  father ;  4th,  brothers ;  5th,  sisters ;  6th, 
grandchildren  ;  7th,  any  other  of  the  next  of  kin  who  would 
be  entitled  to  a  share  in  the  estate.  If  none  of  these  rela- 
tives will  assume  the  trust,  it  must  be  given  to  the  creditor 
fii'st  applying,  and  finally  to  any  other  person  legally  com- 
petent to  act.  Among  several  of  the  same  degree,  males 
are  preferred  to  females,  and  the  court  has  power  to  choose 
from  those  equally  entitled  to  act. 

§  798.  The  administrator  thus  appointed  becomes  imme- 
diately vested  with  the  ownership  of  the  personal  effects  of 
the  deceased,  not  absolutely  indeed,  but  as  a  trustee  acting 
under  the  direction  of  the  court  which  appointed  him  ;  and 
is  charged  with  the  duty  of  paying  debts,  and  distributing 
the  sui-plus  to  the  relatives  entitled  by  law  to  receive  it. 
Yet  for  the  time  being  he  holds  the  legal  title  of  the  per- 
sonal estate,  and  is.  the  immediate  source  of  ownership  to 
the  creditors  and  next  of  kin  among  whom  it  is  divided. 
He  is  responsible  for  the  debts  of  the  deceased,  to  the 
amount  of  efi'ects  which  come  into  his  hands,  and  no  more  ; 
and  in  this  and  some  other  particulars  resembles  the  heir 
in  the  later  Roman  hnv  who  took  an  estate  with  the  benefit 
of  an  inventory.  He  has,  as  administrator,  no  power  or 
control  over  the  lands  of  the  intestate,  but  in  some,  and 


DUTIES   OF    ADlVnNISTRATORS.  467 

probably  all,  of  the  States,  may  apply  to  the  court  for  direc- 
tion to  sell  or  mortgage  some  portion  of  them,  in  order  to 
raise  money  to  pay  debts,  when  the  personal  estate  is  in- 
sufficient for  that  purpose. 

§  799.  The  principal  duties  of  an  administrator  are  the 
settlement  of  the  affairs  of  the  deceased,  the  payment  of  his 
debts,  and  the  distribution  of  the  surplus  among  the  next 
of  kin.  In  the  performance  of  these  duties  he  has  authority 
to  collect  all  claims,  and  convert  the  effects  into  money,  and 
is  bound  to  use  diligence,  and  is  liable  for  all  neglect  of  his 
trust  and  abuse  of  his  powers.  Acting  as  a  trustee,  he  is 
held  to  a  i-igid  accoimtability  to  the  court  which  appointed 
him,  and  of  whicli  he  is  to  a  certain  extent  an  executive  offi- 
cer. In  the  payment  of  debts,  the  English  rule  obliges  him 
to  give  preference  to  certain  classes  of  creditors.  In  some 
of  the  States  this  rule  remains  ;  in  others  it  is  abolished,  and 
after  satisfying  all  dues  to  the  general  and  local  govern- 
ments, and  judgments  which  are  a  lien  on  the  estate,  he 
must  regard  all  other  debts  as  on  the  same  footing,  and  pay 
them  ratably,  if  the  funds  are  insufficient  to  discliarge  them 
all  in  full. 

§  800.  "WTien  the  debts  are  paid,  the  administrator  must 
render  an  account  of  his  trust  to  the  court  which  appointed 
him,  and  under  its  direction  and  by  its  decree,  a  distribu- 
tion of  the  surplusage  is  made.  The  persons  who  share  in 
this  division  of  the  personal  estate  are  determined  by  stat- 
utes in  England  and  the  American  States,  the  provisions  of 
which  are  substantially  l)orrowed  from  the  legislation  of 
Justinian.  In  England  the  widow  receives  one  third  part 
of  the  residue  after  the  payment  of  debts,  and  the  remainder 
is  divided  in  equal  portions  among  the  living  children,  and 
the  descendants  of  those  who  are  dead.  If  there  be  no 
children  or  their  descendants,  one  half  part  is  appropriated 
to  the  widow,  and  one  half  to  the  nearest  of  kin  who  are 
related  in  an  equal  degree  to  the  intestate,  or  to  their  de- 
scendants if  any  be  dead,  with  some  limitations.     If  there 


468  OF    PKOrEKTT. 

be  no  widow,  the  estate  is  distiibuted  equally  among  the 
children,  and  if  no  child,  then  among  the  next  of  kin  in 
equal  degrees,  and  their  descendants.  In  reckoning  the 
degrees  of  relationship  the  rules  of  the  Roman  law  are  fol- 
lowed. In  the  case  of  living  children  and  descendants  of  a 
dead  child,  the  latter  take  together  only  the  share  which 
would  have  belonged  to  their  parent  were  he  still  surviving  ; 
and  the  same  is  true  whenever  the  distribution  is  made  to  a 
number  of  individuals  in  the  same  degree  of  relationship, 
and  to  the  children  of  others  who  ai'e  dead.  If  the  intes- 
tate left  two  children,  and  descendants  of  another,  or  two 
brothers,  and  sons  and  daughters  of  a  third,  the  whole  estate 
would  be  divided  into  three  equal  parts,  one  for  each  of  the 
relatives  in  the  same  degree,  and  one  for  those  who  repre- 
sent the  dead  child  or  brother.  Persons  in  such  situation 
are  said  to  take  jper  stirjyem  and  not  per  capita,  as  was  ex- 
plained in  the  chapter  upon  tlie  Roman  law.  The  regula- 
tions of  this  English  statute  of  distributions  have  been  close- 
ly copied  in  the  legislation  of  the  American  States,  with 
minor  modifications  in  the  order  of  the  persons,  and  the 
shares  which  they  are  entitled  to  receive.  In  K'ew  York, 
the  widow  succeeds  to  the  whole  personal  estate  if  there  be 
no  descendant,  parent,  brother  or  sister  of  the  decedent ; 
if  there  be  no  descendant  or  parent,  but  other  next  of  kin, 
she  takes  the  whole  if  it  do  not  exceed  two  thousand  dol- 
lars. Probably  a  similar  or  even  stronger  discrimination 
is  made  in  favor  of  the  widow  in  many  other  States. 

It  is  thus  seen,  that,  in  case  of  an  intestate,  a  qualified 
property  in  his  things  personal  first  passes  to  an  adminis- 
trator, and  through  him  an  absolute  property  is  acquired 
by  creditors,  and  by  sucli  relatives  as  are  designated  by 
statute. 

§  801.  (2.)  Of  acquiring  irropcrty  in  things  real  in  case 
ofintcstarij.—Viy  the  law  of  England  and  that  of  nearly  all 
the  American  States,  property  in  the  things  real  of  an  intes- 
tatp,  i)a68es  immediately  on  his  death,  without  the  inter. 


REASONS   OF   ENGLISH    RULES   OF   DESCENT.  469 

v^ntion  of  any  administrator,  to  certain  specified  classes  of 
persons  who  are  related  in  blood  to  the  deceased.  Tliis 
transfer  of  the  estate  is  called  descent ;  the  method  of  ac- 
quisition is  called  inheriting  ;  and  the  individuals  who  suc- 
ceed to  the  rights  of  ownership  are  termed  heirs  of  the  last 
l^roprietor.  The  almost  exclusive  object  of  the  rules  em- 
braced in  this  branch  of  the  law,  is  to  designate  what  per- 
sons are  the  heirs  of  an  intestate  under  various  circum- 
stances, and  therefore  entitled  to  receive  and  acquire  proj)- 
erty  in  his  lands.  In  explaining  this  subject,  I  shall  first 
give  a  brief  summary  of  the  law  of  England,  and  secondly 
notice  some  of  the  modifications  introduced  by  American 
legislation. 

§  802.  The  rules  of  descent  and  heirship  incorporated 
into  the  English  common  law,  were  all  borrowed,  or  in- 
ferred by  strictly  logical  reasoning,  from  the  military  ideas 
and  institutions  of  the  feudal  system.  It  will  be  remem- 
bered that  during  the  existence  of  this  polity,  grants  of  land 
called  benefices,  feuds,  or  fiefs,  were  made  by  a  lord  to  his 
vassals,  to  be  held  by  them  in  consideration  of  certain  mili- 
tary services  rendered  from  time  to  time  to  the  superior. 
It  was  of  the  highest  importance  to  this  lord,  that  the  fiefs 
originally  granted  by  him  should  always  remain  in  the  pos- 
session and  ownership  of  vassals  able  to  respond  to  his  de- 
mands for  military  aid.  To  secure  this  object  it  was  neces- 
sary that  individual  fiefs  should  remain  entire,  and  not  be 
divided  and  distributed  among  many  petty  owners,  and  that 
the  vassals  should,  if  possible,  be  males  capable  of  bearing 
arms.  Hence,  on  a  vassal's  death,  the  exigencies  of  the 
feudal  policy  required  that  his  fief  should  descend  to  his 
male  children  rather  than  to  his  daughters,  and  that  among 
the  sons  one  alone  should  succeed  to  the  inheritance.  From 
these  considerations  sprang  the  English  doctrine  of  prefer- 
ring males  to  females,  and  of  the  rights  of  primogeniture 
among  the  males. 

§  803.  Furthermore,  according  to  the  feudal  ideas,  the 


470  OF  PEOPEETY, 

heir  who  succeeded  to  a  fief  on  the  death  of  the  last  owner, 
was  not  considered  as  the  representative  of  that  0"vrner,  and 
as  drawing  the  right  of  property  from  him,  but  as  the  repre- 
sentative of  the  vassal  to  whom  the  land  had  been  first 
granted,  and  as  acquiring  a  right  of  inheritance  by  means 
of  a  consanguinity  with  liim.  In  theory,  a  reference  was 
constantly  made  to  this  original  vassal  as  the  stock  of  de- 
scent, and  the  heir  who  would  enter  upon  the  enjoyment 
of  property,  must  stand  in  his  place  and  succeed  to  all  of 
his  rights,  while  all  of  the  intermediate  possessors  were 
looked  upon  only  as  channels  through  which  the  relationship 
could  be  traced  up  to  this  head.  This  feature  of  the  feudal 
law  of  inheritance  has  been  already  explained  at  large  in 
the  chapter  upon  the  feudal  system,  to  which  I  would  re- 
fer the  reader.  When  feudalism  was  outgrown,  and  its 
ideas  were  transferred  into  the  judicial  legislation  of  Eng- 
land, this  principle  was  adopted  into  the  law  of  descents. 
The  rule  then  requires  that  the  heir  shall  be  of  the  blood 
of  the  person  who  originally  acquired  the  estate,  and  therein 
makes  a  diff'erence  between  lands  which  had  been  inherited 
by  an  intestate,  and  those  which  had  been  purchased  by 
him.  Every  purchaser  becomes  himself  a  new  stock  of 
descent,  and  is  analogous  to  the  original  holder  of  a  fief ; 
while  in  the  case  of  the  descent  of  inherited  lands,  recourse 
must  be  had  to  the  person  who  first  acquired  them  by  pur- 
chase, in  order  to  trace  down  his  blood,  and  find  the  heirs. 

§  804.  But  as  it  would  generally  be  impossible  to  trace 
back  this  connection  between  the  heir  and  the  individual 
who  was  the  primitive  stock  of  descent,  the  law  adopted  the 
convenient  rule  that  the  blood  relatives  of  the  last  owner 
of  lands  who  held  not  only  a  right  of  ownership  over  them, 
but  their  possession  also,  either  actual  or  by  lessees  or  ten- 
ants, should  be  conclusively  presumed  to  be  also  blood  rela- 
tives of  the  original  purchaser  to  whom  a  consanguinity  must 
be  traced.  This  union  of  the  right  of  ownership  in  lands 
with  the  possession  immediate  or  mediate,  the  English  law 


ENGLISH   CANONS   OF   DESCENT.  4:71 

terms  seizin,  and  the  person  who  united  these  elements  in 
himself,  was  said  to  be  seized  of  the  estate.  This  rule,  that 
the  hlood  relations  of  the  deceased  owner  last  seized,  should 
be  presmued  to  be  the  blood  relations  of  the  original  pur- 
cliaser,  preserved  the  form  uf  the  old  feudal  principle,  and 
at  the  same  time  uvercanje  the  difficulty  of  its  application 
ill  multitudes  of  instances  when  family  traditions  had  been 
obscured  by  numerous  generations  of  descent.  But  the 
logic  of  this  doctrine  was  pushed  further,  for  the  rule  not 
only  admitted  those  as  heirs  who  could  connect  themselves 
in  blood  with  the  owner  last  seized,  but  excluded  all  who 
could  not.  Thus  upon  the  death  of  an  individual  who  had 
a  right  of  ownership  in  lands,  without  the  enjoyment  of  that 
possession  of  them  which  constitutes  a  seizin,  the  estate 
does  not  descend  immediately  to  his  blood  relations,  but  the 
heirs  are  found  among  the  relatives  of  the  last  owner  who 
was  seized. 

§  805.  Having  thus  briefly  stated  some  of  the  reasons 
and  institutional  causes  of  the  apparently  technical,  unjust, 
and  arbitrary  provisions  of  the  English  law  regulating  de- 
scents, inheritances,  and  heirships,  I  will  add  a  synopsis  of 
the  rules  themselves  which  are  termed  Canons  of  Inheri- 
tance. 1.  Property  in  things  real  shall  be  inherited  by 
the  children,  grandchildren,  and  other  lineal  descendants  of 
the  person  who  last  died  actually  seized,  so  long  as  this  de- 
scending line  continues,  but  shall  never  ascend  to  parents 
or  other  lineal  ancestors.  2.  Tlie  inheritance  descends  to 
male  in  preference  to  female  children,  but  in  the  absence 
of  sons  or  of  descendants  from  them,  the  daughters  are  ad- 
mitted. 3.  Of  several  males  in  the  same  degree,  the  eldest 
one  is  the  heir,  and  takes  the  whole  estate  ;  but  females  in 
the  same  condition  all  inherit  in  equal  shares.  This  prefer- 
ence of  the  eldest  male  is  known  as  the  right  of  primogeni- 
ture. 4.  Among  lineal  descendants,  children  stand  in  the 
same  place  as  their  ancestor  would  have  done  were  he  living, 
succeeding  to  his  share,  and  are  thus  said  to  represent  him, 


472  OF   PKCPERTY. 

and  to  inherit  jper  stirpem.  By  tliis  rule  tlie  descendantf 
of  an  eldest  son  inherit  before  the  younger  son.  To  illus- 
trate ;  if,  upon  his  death,  the  intestate  should  leave  but  one 
son,  or  one  daughter,  that  person  would  succeed  to  the  en- 
tire estate ;  if  he  left  daughtei-s  alone,  they  would  all  take 
together  in  equal  shares  ;  if  he  left  sons  and  daughters,  the 
eldest  son  would  acquire  the  pi'operty  in  the  whole  inheri- 
tance, which  would  continue  in  his  line  of  descendants  until 
that  became  extinct,  and  would  then  pass  over  to  the  second 
son,  and  his  line  of  descendants,  and  so  on  through  all  the 
sons,  until  there  was  a  complete  failure  of  the  male  stocks, 
when  it  would  be  transferred  to  the  daughters  or  their  issue. 
5.  On  the  failure  of  lineal  descendants  of  the  person  last 
seized,  the  inheritance  descends  to  his  nearest  collateral  kin 
being  of  the  blood  of  the  first  purchaser,  from  among  wliom 
the  heir  is  designated  by  applying  the  foregoing  rples,  that 
among  those  of  the  same  degree  males  are  preferred  to  fe- 
males, that  the  right  of  primogeniture  exists  among  males, 
that  females  take  together,  and  that  lineal  descendants  rep- 
resent an  ancestor,  and  stand  in  his  place  and  enjoy  his 
rights.  The  degrees  of  consanguinity  are  reckoned  accord- 
ing to  the  Canon  law,  which  commences  with  the  comnron 
ancestor  of  the  two  collateral  relatives,  and  counts  down 
the  longest  line.  Thus  upon  the  death  of  an  individual 
leaving  no  issue,  but  having  brothers  and  sisters,  the  eldest 
of  these  brothers,  as  being  in  the  nearest  collateral  degree, 
would  be  the  heir ;  and  if  he  also  were  dead,  the  proi)erty 
Avould  pass  to  his  children  before  the  second  brother  could 
claim  it.  In  short,  the  choice  of  heir  among  collaterals  is 
made  accord  inic  to  the  same  rules  as  that  among:  lineal  de- 
scendants.  Following  l)rotl)ers  and  sisters  and  their  de- 
scendants, the  next  collateral  degree  includes  uncles  and 
aunts.  6.  The  last  rule  is  that  collaterals  related  to  the 
intestate  through  his  father  are  preferred  as  long  as  they 
are  in  existence,  before  those  on  the  female  side,  unless  the 
estate  came  to  the  deceased  through  his  mother.    In  the  lat- 


CHANGES   IN"   AMERICA.  473 

ter  case  the  heirs  are  found  alone  among  collaterals  on  her 
side. 

These  principles  of  the  English  common  law  may  be 
summed  up  as  follows  :  preference  of  males  to  females  ; 
primogeniture  among  males ;  the  estate  never  lineally  to 
ascend  ;  representation  of  ancestors  and  inlieritance^^r  stir- 
j>em  /  collateral  heirs  to  be  of  the  same  blood  as  tlie  first 
purchaser,  who  is  considered  as  the  stock  of  descent ;  and 
the  preference  of  kindred  derived  from  the  blood  of  male 
ancestors,  however  remote,  to  that  derived  from  female  an 
<jestors,  however  near.  It  will  be  seen  that,  unless  an  estate 
is  inherited  by  several  female  heirs  who  take  equal  shares, 
it  cannot  be  subdivided,  but  must  descend  entire  to  a  single 
heir.  This  rule  of  the  law  has  the  eifect  to  preserve  land 
in  the  same  families,  and  to  restrict  its  diffusion,  to  an  ex- 
tent unknown  and  impossible  in  this  country. 

§  806.  These  various  canons  of  inheritance,  descent,  and 
heirship,  have  been  greatly  changed  by  the  statutes  of  the 
American  States.  In  fact,  many  of  the  principles  upon 
which  they  are  based  have  been  abandoned,  and  tlie  doc- 
trines of  the  Roman  law  have  been  more  nearly  followed. 
There  is  a  general  likeness  in  the  legislation  of  all  the  States. 
The  rule  requiring  recourse,  actually  or  theoretically,  to  the 
first  purchaser  as  the  stock  of  descent,  has  been  abrogated, 
and  the  deceased  owner,  whether  seized  or  not,  is  consid- 
ered as  the  source  of  inheritance,  with  whose  blood  alone 
the  heirs  need  be  connected.  Females  are  admitted  equally 
with  males  of  the  same  degree  to  share  the  estate.  Primo- 
geniture is  abolislied.  In  most  of  the  States  the  inheritance 
may  ascend  to  parents.  Based  upon  these  principles,  the 
following  canons  of  descent  are  common  to  all  or  to  most 
of  the  States. 

§  807.  1.  On  the  death  of  an  owner  intestate,  the  prop- 
erty in  his  things  real  passes  to  his  lawful  lineal  descendants 
male  and  female,  who,  if  in  the  same  degree  of  consanguinity, 
take  equal  shares,  and  thus  the  whole  property  is  imm&- 


474  OF    PROPERTY. 

dialely  divided  into  as  many  separate  ownerships  as  there  are 
heirs.  Postliumon?  children  inherit  equally  with  those  born 
before  the  death  of  their  ancestor.  Thus  if  the  heirs  are  all 
children,  or  all  grandchildren,  or  all  great-grandchildren, 
they  receive  eqnal  shares,  and  so  inherit  jper  cainta.  2.  If 
however  the  heirs  are  descendants  in  different  degrees  of 
consanguinity,  the  English  doctrine  of  representation  among 
them  prevails,  and  they  inherit  jper  stirjpcm.  Tims  if  chil- 
di-en  be  left,  and  sons  and  daughters  of  a  dead  child,  the 
latter  take  collectively  only  the  share  which  would  have 
belonged  to  their  father.  3.  In  many  of  the  States,  upon 
the  death  of  an  intestate  without  lawful  descendants,  the 
property  in  his  lands  passes  to  his  parents,  if  living,  either 
jointly,  or  to  the  father  first,  or,  if  he  be  dead,  to  the  mother. 
In  some  of  the  States,  descent  in  the  ancestral  line  stojis 
M'ith  the  parents  ;  in  others  it  is  continued  to  grandparents. 
4.  In  the  aT)sence  of  descendants  and  parents,  recourse  is 
had  to  the  nearest  collateral  relatives,  and  the  inheritance 
passes  to  the  living  brothers  and  sisters  of  the  intestate  and 
the  descendants  of  those  wlio  are  dead,  among  whom  it  is 
divided  in  accordance  with  the  same  rules  which  apply 
to  lineal  heirs.  5.  "Wlien  all  these  classes  fail,  the  law  of 
some  States  prefers  gi'andparents  ;  while  that  of  others  de- 
clares uncles  and  aunts  and  their  descendants  to  constitute 
the  next  degree  who  are  to  receive  the  estate.  If  the  land 
came  to  the  intestate  by  inheritance  on  the  part  of  his  father, 
his  paternal  uncles  and  aunts  would  succeed  to  it ;  but  if  it 
descended  to  him  from  the  mother,  her  collaterals  would  be 
preferred.  6.  In  the  absence  of  all  these  classes,  the  re- 
maining next  of  kin  according  to  the  statute  of  distributions 
:»f  personal  effects,  would  be  the  heirs  ;  or  else  the  inheri- 
tance would  follow  the  rules  of  the  English  common  law. 

§  SOS.  This  sketch  is  snffic-ient  to  show  the  general  fea- 
tures of  the  law  of  descent  and  heirship  as  it  prevails  in  the 
United  States.  While  we  have  retained  so  much  of  the  feudal 
eysteni  as  creates  a  marked  distinction  between  lands  and 


AMERICAN    CANONS   OF   DESCENT.  475 

movables,  and  establishes  different  modes  for  acquiring 
property  in  them  at  the  death  of  an  intestate  owner,  jet  we 
have  abolished  those  technical  rnles  which,  inferred  as  logi- 
cal consequences  from  feudalism,  have  rendered  the  English 
law  harsh  and  inequitable.  The  policy  of  our  institutions 
is  to  preserve  lands  in  commerce,  with  a  perfect  freedom 
of  acquisition  and  transfer  ;  and  to  prevent  their  accumula- 
tion in  families.  This  has  been  effected  by  admitting  all 
relations  in  tlie  same  degree  to  inherit  equal  shares  of  an 
estate. 

§  809.  At  an  early  period  of  the  English  law,  lands  de- 
scended to  the  heir  free  from  the  debts  of  the  intestate,  as 
has  been  explained  in  a  preceding  chapter  ;  but  this  unjust 
provision  was  afterwards  relaxed.  It  has  no  existence  in 
the  United  States,  but  the  vestige  of  the  old  doctrine  still 
remains.  The  personal  effects  of  an  intestate  yet  constitute 
the  primary  fund  out  of  which  all  his  debts  must  be  paid  if 
possible,  so  that  the  lands  shall  be  unencumbered  ;  but  if 
this  fund  be  insufficient,  after  its  exhaustion  recourse  is  had 
to  the  real  estate  in  the  hands  of  the  heirs,  who  are  then 
liable  to  the  amount  which  descended  to  them. 

§  810.  These  general  canons  of  descent  in  the  American 
law  may  be  summed  up  as  follows:  the  preference  of  the 
lineal  descendants  in  the  heirship  ;  the  admission  of  the 
ascending  line  as  far  as  parents,  and  in  some  States,  grand- 
parents ;  inheritance  of  collaterals  in  the  order  of  brothel's 
and  sisters  and  their  descendants,  uncles  and  aunts  and  their 
descendants ;  the  admission  of  all  heh's  in  the  same  degree 
TO  an  equal  share ;  representation  among  those  in  different 
degrees ;  equality  between  male  and  female  heirs ;  and 
preference  of  collaterals  on  the  uiale  side  when  an  estate 
came  from  the  father,  and  on  the  female  side  when  it  de- 
scended on  the  part  of  the  mother. 

§  811.  2.  By  Last  Will  and  Testament.— ^K  will  is  a 
disposition  of  property  in  things  real  and  personal,  to  take 
effect  at  the  death  of  the  testator.  ,  The  law  gives  the  owner 


470)  OF   PKOPEKTT. 

of  things  a  capacity  to  direct  into  whose  hands  they  shall 
pass  after  his  decease,  and  this  power  is  exercised  by  a  last 
will  and  testament.  Such  a  control  seems  to  be  an  incident 
of  the  mere  fact  of  proprietorship,  and  we  therefore  find  this 
method  of  transferring  and  acquiring  property  common  in 
all  countries  and  in  different  degrees  of  civilization.  Wills 
of  lands,  however,  were  opposed  to  the  feudal  ideas,  and 
during  the  prevalence  of  that  policy  in  England  they  were 
not  allowed,  until  the  reign  of  Henry  YIII.,  when  they 
were  permitted  by  statute.  Wills  of  movables  came  into 
use  crraduallv,  and  were  established  without  the  sanction  of 
parliamentary  legislation.  Wills  are  common  tlironghout 
the  United  States,  and  the  rules  respecting  them  are  partly 
based  upon  statutory  enactments,  and  partly  upon  decisions 
of  courts. 

§  812.  It  is  a  settled  principle  of  law  in  all  tlie  Ameri- 
can States  except  Louisiana,  that  the  property  in  all  the 
things  of  a  testator,  whether  real  or  personal,  may  be  dis- 
posed of  by  will.  Neither  in  England,  nor  in  America,- 
with  the  exception  just  mentioned,  is  an  owner  compelled 
to  reserve  anything  for  liis  children  or  other  heirs.  Tlie  en- 
tire estate  may  be  transferred,  or  any  part  of  it ;  it  may  all 
be  given  to  one  individual,  or  be  divided  among  many. 
The  testator  may  make  any  dispositions,  transfer  any  estates, 
and  impose  any  limitations  that  he  may  wish,  provided  they 
are  in  accordance  with  the  general  rules  and  principles  of 
the  law.  He  is  permitted  to  exercise  as  comi>lete  a  domin- 
ion over  his  possessions  as  is  compatible  with  the  interests 
and  policy  of  the  commonwealtli.  A  gift  of  land  by  a  will 
is  technically  termed  a  devise,  and  the  pereon  receiving  it, 
a  devisee ;  a  gift  of  movables  is  called  a  legacy,  and  the 
individual  to  whom  it  is  made,  a  legatee.  By  the  common 
law,  only  such  lands  as  the  testator  owned  at  the  time  the 
will  was  oxec'ited,  were  subjected  to  its  operation ;  all  ac- 
quired Bubsequcntly  descended  to  the  heirs.  Tliis  rule  has 
been  changed  in  tlie  United  States,  and,  if  sufficiently  com- 


EXECUTION    OF  WILLS.  477 

prebtQsive  in  its  terms,  the  instrument  covers  all  the  estate 
owned  by  the  testator  at  the  time  of  liis  death. 

§  813.  The  English  law  clothes  all  persons  of  sound 
taind,  except  married  women  and  infants,  with  the  capacity 
to  make  wills  of  lands,  and  extends  the  right  to  make  wills 
of  movables  even  to  infants  of  fourteen  years  if  males,  and 
twelve  years  if  females.  In  most  of  the  United  States  these 
latter  ages  are  probably  increased  to  eighteen,  and  sixteen 
years.  Recent  legislation  in  this  country  has  very  gener- 
ally removed  the  disability  from  married  women,  and  per- 
mitted them  to  dispose  of  their  estates  as  though  they  were 
single.  The  rule  then  in  all  those  States  which  have  re- 
constructed the  law  of  husband  and  wife,  would  seem  to  be, 
that  all  persons  of  sound  mind,  whether  single  or  married,, 
can  make  a  valid  will,  with  the  exception  of  infants  under 
the  restrictions  above  stated.  All  persons  whatever,  whether 
infants,  married,  or  even  insane,  may  acquire  property  by 
this  method.  There  is  then  no  restraint  upon  the  property 
which  may  be  conveyed,  nor  upon  the  persons  who  may  re- 
ceive, and  only  a  slight  one  upon  those  who  may  transfer  by 
will. 

§  814.  In  England  there  is  a  distinction  between  wills 
of  land  and  those  of  chattels.  The  former  are  required  by 
statute  to  be  in  writing,  signed  by  the  testator,  and  attested 
and  subscribed  by  two  witnesses  in  his  presence.  Tlie  lat- 
ter class  were  anciently  oral,  and  even  after  those  in  writing 
became  universal,  they  needed  no  special  formality  in  their 
execution.  By  the  statutes  of  most  of  the  American  States, 
both  classes  are  placed  upon  the  same  footing,  and  must  be 
carefully  executed  with  the  same  formalities.  The  detail 
of  these  forms  requisite  to  the  validity  of  wills,  varies  much 
in  different  States.  In  general  these  instruments  must  be 
in  writing,  signed  by  the  testator,  or  his  signature  acknowl- 
edged, in  the  presence  of  two  or  three  witnesses,  who  also 
add  their  names  in  attestation.  The  law  of  some  States, 
however,  is  much  more  particular  and  minute,  rendering  the 


478  OF   PROPERTY. 

execution  of  a  will  a  complex  operation.  In  ISTew  York, 
the  testator  must  sign  at  tlie  end,  in  the  presence  of  two 
witnesses,  or  acknowled<j^e  his  signature  to  them,  and  at  the 
same  time  declare  the  instrument  to  be  his  last  will  and 
testament,  and  at  his  request  the  witnesses  must  also  sub- 
scribe their  names.  As  these  regulations  are  made  by  stat- 
ute, their  observance  is  necessary  to  the  validity  of  the  will 
and  in  proving  the  instrument  after  the  death  of  the  testa 
tor,  it  must  be  affirmatively  shown  that  they  have  all  been 
substantially  complied  with.  Tlie  intention  of  the  legisla- 
ture was  to  remove  all  opportunity  for  setting  up  forged 
wills,  and  all  doubt  as  to  the  testator's  acts  and  intention. 
Still  this  very  strictness  and  multiplicity  of  detail  have  some- 
times the  effect  to  thwart  the  evident  wishes  of  the  deceased, 
when  any  omission  has  been  ignorantly  or  carelessly  made. 

.  §  815.  A  will  is  entirely  inoperative  during  the  interval 
between  its  execution  and  the  testator's  death,  and  may  be 
altered,  or  revoked,  or  annulled  by  him  at  jileasure.  The 
alteration  is  done  by  a  codicil,  which  is  a  supplement  an- 
nexed to  the  original  instrument,  making  additions  to  or 
changes  in  its  provisions.  The  intention  to  revoke  and 
annul  a  will  must  be  exhibited  in  some  unmistakable  man- 
ner, either  by  burning,  cancelling,  tearing,  or  obliterating 
it,  or  by  executing  another,  inconsistent  in  its  terms  with 
the  former  one.  Certain  other  acts  of  the  testator,  not 
directly  connected  with  the  Avill,  are  also  deemed  to  indi- 
cate in  a  positive  manner  his  intention  that  it  should  be 
revoked.  Thus  his  subsequent  marriage  and  the  birth  of 
children  have  this  effect.  So  also  the  will  of  a  single 
woman  is  rendered  null  by  her  marriage.  It  may  be 
doubted  whother  this  last  rule  would  still  remain  in  New 
York  and  other  States  in  Avhich  a  wife  is  declared  by  law  to 
lose  none  of  the  rights  over  proj^erty  which  she  enjoyed 
while  single.  The  sale,  during  the  testator's  lifetime,  of 
lands  devised  or  chattels  bequeathed  by  him,  withdraws 
them  from  the  operation  of  his  will. 


PAYMENT   OF    LEGACIES.  '  479 

§  816.  Upon  the  deatli  of  the  testator,  property  in  the 
lands  given  by  hiin  immediately  rests  in  the  devisees,  unless 
otherwise  directed.  Tliis  is  not  true  of  chattels.  The  will 
must  be  proved,  and  a  trustee,  analogous  to  an  administra- 
tor, appointed  to  settle  the  estate,  pay  the  debts,  and  dis- 
tribute the  legacies.  Tliis  person  is  called  an  executor,  and 
is  usually  named  in  the  will  itself;  if  not,  the  Probate 
Court  or  Surrogate  supplies  the  omission  in  the  same  man- 
ner as  it  designates  an  administrator  in  case  of  intestacy. 
An  executor  must  first  submit  the  will  to  the  court  for 
proof,  and  its  authenticity  and  proper  execution  having 
been  established,  he  proceeds  according  to  its  directions  to 
settle  t]ie  estate.  He  is  the  agent  of  the  deceased  for  the 
purpose  of  carrying  out  his  expressed  wishes.  In  the  ab- 
sence of  any  express  provisions,  he  must  pay  the  debts  from 
the  yjersonal  effects  as  a  fund  ;  but  may  be  directed  by  the 
will  to  convert  the  real  estate  into  money  for  that  purpose. 
When  all  the  debts  are  discharged,  he  must  proceed  to  pay 
the  legacies,  in  full  if  posible,  and  rateably,  if  the  fund  be 
insufficient.  Legacies  are  either  specific  or  general ;  speci- 
fic, when  they  are  gifts  of  some  particular  articles  ;  general, 
when  they  are  gifts  of  certain  amounts  or  portions  of  the 
estate,  undivided  from  the  residue  of  the  effects.  As  the 
testator's  intention  is  more  marked  in  reference  to  the 
former  class,  they  are  to  be  fii'st  paid,  so  that  any  deduction 
which  may  be  neces^ry,  shall  fall,  if  possible,  on  the  gen- 
eral legacies  alone. 

§  817.  No  technical  words  are  necessary  to  convey  an 
absolute  property  in  either  lands  or  movables  ;  but  in  giving 
effect  to  the  provisions  of  a  will  the  intention  of  the  testa- 
tor is  to  be  carefully  ascertained  and  implicitly  followed. 
The  law  has  laid  down  some  special  rules  to  aid  in  discov- 
ering this  intention  when  the  meaning  is  doubtful,  but  to 
explain  them  would  lead  me  into  too  much  detail 


480  or    PKOPEKTY. 

m. 

WHEN   PROPERTY  IS  ACQUIRED    FROM   A   FORMER   LITING   OWNER. 

§  818.  The  metliods  by  which  property  in  things  real 
or  personal  may  be  acquired  from  a  former  living  owner, 
are  naturally  distributed  into  two  general  divisions ;  l&t 
when  the  transfer  is  made  by  his  act  and  with  his  consent 
and  2d,  when  it  is  made  as  a  consequence  of  his  acts,  but 
without  his  consent.  In  the  former  class  are  included  dona- 
tions and  contracts,  which  appiy  only  to  movables ;  con- 
veyances by  deed,  which  apply  only  to  lands ;  and  marriage, 
which  applies  to  both.  The  ktter  embraces  fbrfeitm-e,  judg- 
ment and  execution,  and  insolvency  or  banki-uptcy.  Tliese 
will  be  briefly  noticed  in  order. 

§  819.  1.  When  the  transfer  is  made  by  the  act,  and 

WFfH  THE  consent  OF  THE  FORMER  O'SNTSTER. — In  all  tllB  meth- 
ods embraced  in  this  division,  the  owner  who  parts  with 
property  is  an  eflicient  actor  in  directly  causing  the  transfer 
from  himself  to  another.  "Whether  he  donates,  sells,  hires, 
loans,  conveys  land  by  deed,  or  marries,  he  contemplates  a 
change  of  property  in  his  things,  as  the  very  result  to  be 
accomplished.  In  this  purpose  he  must  be  aided  by  the  re- 
ceiver, who  either  passively  accejits,  or  entirely  procures 
the  change  of  ownership,  by  a  similar  transfer  of  property 
in  other  things,  or  by  rendering  some  benefit,  as  a  consid- 
eration. 

§  820.  (1.)  Donations. — A  donation  or  gift  is  a  volun- 
tary transfer  of  property  in  a  movable,  without  any  con- 
sideration or  benefit  passing  from  the  receiver  to  the  donor. 
Chattels  alone  are  the  objects  of  this  mode  of  acquisition, 
for  lands  can  only  be  conveyed  by  a  formal  written  instru- 
ment. The  element  which  distinguishes  gifts  from  sales  and 
other  contracts,  is  the  absence  of  any  consideration.  As  it 
might  easily  be  made  the  cover  of  fraud  and  imposition,  the 


DOXATIONS — CONTKACTS.  481 

law  does  not  favor  this  method  of  acquisition,  and  guards  it 
with  strict  rules.  An  actual  delivery  of  the  article,  so  that 
the  former  owner  shall  completely  abandon  his  dominion 
over  it,  is  absolutely  essential  to  any  valid  gift.  Promises  to 
give,  even  in  writing,  without  this  indispensable  accompani- 
ment of  delivery,  have  no  binding  force.  Donations  are 
of  two  kinds ;  those  iiiter  vivos,  and  those  causa  mortis. 
The  former  may  be  made  at  any  time,  and  take  effect  im- 
mediately. When  perfected  they  are  irrevocable,  unless 
they  are  prejudicial  to  creditors,  and  even  then  they  cannot 
be  assailed  by  the  donor.  Donations  causa  mortis  are  made 
in  apprehension  of  death,  and  are  conditional  until  the  death 
occurs,  when  they  become  absolute.  They  have,  then,  a 
strong  resemblance  to  legacies  given  by  will.  Even  after  a 
delivery  of  the  thing  to  the  intended  beneficiary,  if  the 
giver  recover,  the  donation  does  not  take  place,  and  no  prop- 
erty is  transferred.  So  guarded  is  the  law  in  respect  to  this 
latter  species  of  gifts,  that  it  requires  a  delivery  of  the  Yery 
article,  goods  or  money,  into  the  possession  of  the  recipient, 
and  is  not  satisfied  with  a  transfer  of  the  means  of  pro- 
curing the  article.  So  it  is  a  settled  rule  that  a  gift  of  a  writ- 
ten order  for  money  in  the  keeping  of  a  third  person  would 
not  operate  to  transfer  the  property  in  the  money.  The 
same  principle  has  been  applied  in  many  analogous  cases. 

§  821.  (2.)  Contract. — Property  in  movables  may  be 
voluntarily  transfeiTed  from  one  person  to  smother  by  con- 
tract. In  its  most  general  sense  "  a  contract  is  an  agree- 
ment upon  a  sufficient  consideration,  to  do  or  not  to  do  a 
particular  thing."  The  various  kinds  of  contracts  may  be 
completely  expressed  by  the  four  following  formulas,  viz. : 
do  ut  des  ;  do  %d  facias  :  fado  v.t  des  /  2a\difacio  ut facias. 
By  the  first  three  of  these  classes  property  in  chattels  of  any 
description  may  be  acquired.  The  first  do  ut  des)  implies 
that  one  party  gives  something  to  the  other  in  considerr- 
tion  for  a  thing  returned  or  to  be  returned.  In  it  are  in- 
cluded all  sales  of  chattels,  whereby  property  in  the  article 
31 


482  OF  rRGPERTY. 

is  transferred  to  the  buyer,  and  in  the  price,  to  the  seller ; 
all  barters,  whereby  property  in  goods  is  mutually  inter- 
changed ;  all  loans,  whereby  property  in  the  thing  loaned 
passes  to  the  borrower,  upon  the  credit  reposed  in  him  that 
he  will  return  an  equivalent.  The  second  and  third  classes 
(do  ut  facias,  facio  ut  des,)  imply  that  some  acts  are  per- 
formed by  one  party,  in  consideration  of  something  given 
by  the  other.  In  these  divisions  are  included  all  contracts 
of  hiring,  and  all  others  in  which  services  are  rendered  as 
an  equivalent  for  things  transferred.  The  hirer  or  employer 
has  a  right  to  the  stipulated  labor,  care,  and  other  service, 
or  to  the  use  of  the  article  agreed  upon,  and  the  employee 
acquires  property  in  the  price,  whether  it  be  money  or  other 
movable. 

§  822.  These  comprehensive  divisions  include  all  the 
cases  in  which  property  may  be  transferred  and  acquired  by 
contract,  but  any  more  detailed  account  of  the  methods  of 
sale,  barter,  loan,  hiring,  and  others,  is  postponed  to  the 
succeeding  chapter,  which  will  be  devoted  to  the  subject  of 
contracts.  It  must  not  be  understood  that  a  transfer  of 
property  may  be  effected  by  eveiy  species  of  contract,  for 
these  agreements  are  as  varied  in  their  terms  and  stipula- 
tions as  the  necessities  of  mankind  require,  and  often  relate 
entirely  to  other  subjects  than  the  right  of  ownership  in 
things.  The  fourth  class  (facio  ut  fiicias),  in  which  one  party 
engages  to  perform  services,  in  consideration  for  services 
rendered  by  the  other,  includes  such  cases. 

§  823.  (3.)  Conveyance  of  Land  hy  Deed. — A  voluntary 
transfer  of  property  in  lands  is  effected,  in  England  and 
the  United  States,  by  a  written  instrument  called  a  deed. 
In  very  ancient  times,  conveyances  could  be  made  M'ithout 
a  writing,  certain  public  formalities  in  delivering  possession 
serving  to  mark  the  act  and  indicate  the  intention  of  the 
[»wner  in  parting  with  his  rights.  But,  as  we  have  seen, 
written  conveyances,  then  and  for  a  long  time  after  called 
cliarters,  were  not  uncommon  among  the  Saxons,  and  these 


CONVEYANCE  OF  LAND  BY  DEED.  483 

grew  into  more  general  use,  until  tliey  became  universal, 
and  were  fully  recognized  by  the  common  law.  Finally  the 
statute  of  frauds  added  its  requirements  to  the  provisions 
of  the  former  unwritten  law.  This  statute,  which,  as  I 
have  already  remarked,  has  been  adopted  in  all,  or  nearly 
all,  of  the  American  States,  requires  that  transfers  of  any 
interests  m  lands,  except  those  held  by  leases  for  a  short 
period,  shall  be  in  writing. 

§  824.  As  in  the  case  of  wills,  so  in  that  of  deeds,  an 
owner  may  transfer  any  riglits,  create  any  estates,  impose 
any  limitations,  that  are  not  contrary  to  the  general  prin- 
ciples and  rules  of  the  law.  Tlie  law  of  England  and  of  our 
own  States,  influenced  by  a  consideration  of  public  policy, 
has  forbidden  certain  disj^ositions  of  property  to  be  made. 
In  this  country  the  restraints  upon  the  unlimited  power  of 
owners  are  much  greater  than  in  England.  Our  whole 
policy,  and  the  condition  of  society  with  us,  require  that 
lands  should  be  kept  in  commerce,  free  to  be  bought  and 
sold ;  and  our  law  does  not  therefore  peraiit  owners  to  tie 
up  their  estates,  so  as  necessarily  to  retain  them  in  families, 
and  prevent  them  from  being  freely  aliened.  Beyond  this 
class  of  restrictions,  which  will  be  more  particularly  referred 
to  in  the  succeeding  section,  the  law  does  not  interfere  with 
the  wishes  of  owners  in  conveying  their  lands.  The  con- 
tents of  a  deed  therefore,  that  which  determines  to  whom 
and  for  what  purposes  the  land  is  conveyed,  what  interests 
in  it  are  transferred,  and  for  what  time  these  are  to  be  en- 
joyed, must  rest  in  a  great  measure  upon  the  agreements 
of  the  parties,  or  the  wishes  of  the  owner. 

§  825.  As  a  general  rule,  all  owners,  except  infants  and 
persons  of  unsound  mind,  are  able  to  convey  by  deed.  In 
most  of  the  States  the  consent  of  the  husband  is  necessary 
to  the  validity  of  a  married  woman's  conveyance.  The  es- 
sentials of  a  deed  are,  tiiat  it  must  be  written,  signed,  sealed, 
and  delivered.  The  writing  is  required  by  the  common  law 
and  by  statute,  the  sealing  by  the  common  law.     In  ancient 


4:84  OF  PROPERxr. 

times,  when  writing  was  a  rare  accomplisliment,  it  was  the 
custom  for  persons  to  execute  these  instruments  by  stamp- 
ing their  signets  in  wax  upon  the  paper  or  parchment. 
This  once  reasonable  practice  was  adopted  by  the  common 
law,  and  was  required  as  a  form  to  give  character  and  effi- 
cacy to  this  species  of  writings.  In  some  States  the  seal  is 
still  retained  unaltered,  as  an  impression  upon  wax,  wafer, 
or  otlier  tenacious  substance  ;  in  other  States  the  mere  shad- 
ow of  this  form  is  sufficient,  and  the  seal  has  degenerated 
into  a  simple  scroll  with  a  pen.  A  delivery  of  the  deed  to 
the  party  purchasing,  or  his  agent,  is  necessary  to  perfect  the 
conveyance,  for  as  long  as  it  remains  in  the  possession  of 
the  vendor,  he  may  rescind  his  agreement ;  but  when  the 
possession  is  once  fairly  transferred  to  the  purchaser,  the 
property  is  thereby  also  transferred  and  vests  in  him.  This 
delivery  of  the  deed  is  equivalent  to  the  ancient  delivery  of 
the  land.  So  effectual  is  this  act,  that  when  the  title  has 
been  once  vested  by  this  means,  it  cannot  be  abandoned,  or 
revested  in  the  original  owner,  even  by  destroying  the  in- 
strument ;  nothing  but  a  formal  reconveyance  will  suffice. 

§  826.  The  legislation  of  all  the  States  provides  for  proof 
of  deeds  by  an  acknowledgment  of  their  execution  made  by 
the  party  before  some  officer  designated  by  statute.  A  married 
woman  must  generally  make  this  acknowledgment  separate 
and  apart  from  the  husband,  in  order  that  a  conveyance  of  her 
right  of  dower  sl>  all  have  any  validity.  Provision  is  also  made 
for  recording  deeds  so  acknowledged,  in  public  offices  of  reg- 
istry. This  practice  of  recording  is  universal  in  the  United 
States,  and  is  of  the  utmost  convenience  in  furnishing  accurate 
information  as  to  the  ownership  of  lands.  The  record  of  a 
deed  is  not  in  general  essential  to  its  validity  between  the  im- 
mediate parties  and  their  heirs,  but  is  intended  as  a  notice 
to  all  the  world  of  the  transfer  of  -property,  and  the  present 
ownurship.  The  statutes  therefore  declare  that  the  fact  of 
recording  shall  raise  an  absolute  presumption  of  law  that  all 
persouti  are  informed  of  the  contents  of  the  instruments  so 


KECOEDING    OF   DEEDS.  4? 5 

registered,  and  shall  have  the  same  effect  as  an  actual  no- 
tice. These  statutes  further  provide  that  subsequent  hona 
fide  purchasers  of  land  by  a  deed  which  has  been  recorded, 
shall  have  priority  over  a  former  unregistered  deed  of  the 
same  premises  from  the  same  owner,  of  which  they  had  no 
actual  notice.  In  other  words  successive  deeds,  other  things 
being  equal,  take  a  priority,  not  according  to  the  dates  of 
their  execution,  but  of  their  recording.  The  policy  of  this 
legislation  is  evident.  By  making  it  possible  for  all  pur- 
chasers to  give  immediate  notice  of  their  newly  acquired 
rights,  and  for  all  persons  about  to  purchase,  to  satisfy  them- 
selves of  any  prior  claims  to  the  same  lands,  it  has  removed 
all  opportunity  for  mistake,  deception,  or  imposition.  With 
a  moderate  degree  of  care  and  diligence,  all  danger  of  loss 
can  be  effectually  guarded  against.  These  statutory  pro- 
visions apply  not  only  to  absolute  conveyances,  but  to  all 
deeds  wliich  create  a  lien  or  encumbrance  on  lands,  such  as 
mortgages,  and  to  those  which  transfer  partial  interests,  such 
as  leases. 

§  82Y.  The  contents  of  a  deed  will  of  course  vary  with 
the  purposes  for  which  it  is  executed.  The  instrument  must 
contain  the  names  of  the  parties,  or  such  reference  to  them 
that  they  can  be  identified.  A  consideration  is  also  gen- 
erally necessary,  although  a  gift  of  land  by  deed  is  obligatory 
between  the  parties,  and  can  only  be  questioned  by  credi- 
tors and  subsequent  purchasers  whose  rights  are  concerned. 
The  premises  conveyed  must  also  be  described  with  so  much 
certainty  that  they  may  be  clearly  ascertained.  ISTo  formal 
or  technical  ex])ressions  are  required  to  effect  the  transfer 
of  an  absolute  property  in  lands,  and  in  this  country  deeds 
are  usually  simple  and  short,  divested  of  the  verbiage  and 
redundancy  wiiich  is  common  in  England.  By  the  com- 
mon law,  and  perhaps  still  by  the  law  of  some  of  the  States, 
the  words  "  and  his  heirs,"  after  the  name  of  the  purchaser, 
must  be  inserted,  when  it  is  intended  to  convey  an  absolute 
estate  in  fee  ;  in  the  absence  of  these  words,  only  an  interest 


iS6  OF   PEOPERTY. 

for  life  will  pass  ;  but  this  rule  has  been  altered  by  statute 
in  many  and  probably  in  most  of  the  States. 

§  828.  These  instruments  often  contain  covenants  or 
agreements  on  the  part  of  the  person  who  conveys,  that  he 
is  the  lawful  owner  of  the  premises,  or  that  he  has  the  right 
to  convey,  or  that  the  land  is  fi'ee  from  encumbrance,  or 
that  the  purchaser  shall  quietly  enjoy  its  possession,  or  that 
he  will  warrant  and  defend  the  title  against  all  laM^ful 
claims.  The  object  of  these  special  agreements  is,  that  the 
purchaser  may  have  recourse  against  the  seller  for  damages, 
in  case  a  perfect,  free,  unencumbered  right  of  property  has 
not  been  transferred  to  him.  Thus  if  the  deed  contained 
the  above  covenant  of  warranty,  and  the  land  should  be 
taken  from  the  purchaser  by  some  third  person  who  had  a 
lawful  claim  to  it,  which  would  necessarily  involve  the  fact 
that  the  seller  had  no  property  therein  which  he  could 
transfer,  the  purchaser  could  recover  from  the  other  party 
such  damages  as  he  had  sustained,  which  would  be  at  least 
the  amount  of  the  purchase  money  and  interest.  When 
none  of  these  special  agreements  are  embraced  in  the  deed, 
according  to  the  legislation  of  some  States,  the  person  who 
gave  the  instrument  would  not  be  liable  in  any  event ;  but 
by  the  English  law,  and  that  of  other  States,  the  use  of  cer- 
tain words  of  conveyance  is  equivalent  to  the  insertion  of 
some  of  these  covenants,  and  imposes  the  same  liability 
upon  the  seller. 

§  829.  (4.)  Marriage. — By  marriage  the  husband  ac- 
quires rights  of  property  in  the  lands  and  movables  of  the 
wife,  and  the  wife  acquires  a  life  interest  in  the  lands  of  her 
husband.  This  transfer  is  the  result  of  the  mutual  acts  of 
the  parties.  It  is  certainly  an  error  to  describe  this  or  any 
other  mode  of  acquisition  as  specially  effected  by  the  law. 
All  transfers  are  the  results  of  legal  rules  based  upon  cer- 
tain circumstances  or  acts  of  the  persons  concerned.  It  is 
the  law  which  gives  effect  to  conveyances  of  land,  sales  of 
chattels,  as  well  as  to  the  change  of  rights  which  follows  a 


JUDGMENT   AND   EXECUTION.  487 

marriage.  In  all  these  instances  the  parties  voluntarily 
place  themselves  and  their  possessions  in  a  situation  where 
the  law  acts  upon  them  and  carries  out  their  intentions. 
Of  the  special  ti-ansfers  of  property  which  result  from  mar- 
riage, I  have  already  spoken  in  the  preceding  chapter. 

§  830.  2.  "When  the  transfer  is  made  as  a  consequence 
OF  the  former  owner's  acts,  but  without  his  consent. — 
The  methods  included  in  this  class  are  all  based  upon  the 
9,cts  of  the  former  owner,  and  thence  draw  their  efficacy ; 
yet  the  results  are  not  contemplated  by  him,  and  therefore 
want  the  element  of  his  volition  which  characterizes  those 
of  the  former  class.  The  particular  acts  which  have  this 
power  of  being  the  occasion  of  a  transfer  of  property,  are 
the  commission  of  certain  crimes,  and  the  contracting  of 
debts. 

§  831.  (1.)  Forfeiture. — Forfeiture  is  a  consequence  of 
certain  crimes,  on  the  conviction  of  which  the  criminal  loses 
his  rights  of  property,  which  thereupon  pass  to  the  State. 
The  common  law  annexed  this  penalty  to  many  offences, 
but  these  ancient  rules  have  been  abolished  in  this  country, 
and  the  whole  subject  has  been  regulated  by  the  national 
and  State  constitutions  and  statutes.  The  Constitution  of 
the  United  States  declares  that  treason  shall  not  work  a  for- 
feiture, except  for  the  life  of  the  offender  ;  and  most  of  the 
States  have  restricted  this  method  of  acquisition  in  the  same 
manner,  while  some  have  discarded  it  altogether.  It  may 
be  considered  as  a  rule  throughout  the  United  States  that 
forfeiture  does  not  exist  exce[>t  in  the  case  of  treason,  and 
even  then,  under  the  limitations  above  mentioned.  There 
is  also  a  species  of  forfeiture  between  private  owners  known 
to  the  common  law,  but  it  probably  is  not  recognized  in  any 
of  the  American  States. 

§  832.  (2.)  Judgment  and  Exeoution. — Upon  the  recov- 
ery of  a  judgment  which  directs  tlie  payment  of  money,  the 
common  law  and  statutes  in  Eno-land  and  the  United  States 


iSS  OF  PKOPEETY. 

give  tlie  creditor  tlie  power  to  satisfy  his  claim  out  of  the 
debtor's  eifects.  Anciently  only  chattels  were  subject  to 
be  taken  for  this  purpose,  but  Parliament  gradually  expend- 
ed the  remedy  to  lands.  In  this  country  the  whole  subject 
is  regulated  l3y  statute,  and  there  is  much  diversity  in  the 
details  of  the  legislation  of  the  different  States,  but  the  gen- 
eral principles  are  common  to  all. 

§  833.  A  judgment  must  be  satisfied  if  possible  from  the 
personal  effects  of  the  debtor.  For  this  purpose  an  execu- 
tion is  issned  and  given  to  the  proper  officer,  generally  the 
sheriff,  who  is  thereby  directed  to  levy  upon  or  seize  the 
goods  of  the  judgment  debtor,  and  sell  them,  and  from  the 
proceeds  satisfy  the  claim.  From  the  time  the  execution 
is  delivered  to  the  sheriff,  it  is  a  lien  upon  the  chattels  of 
the  defendant,  so  that  they  can  be  taken,  although  posses- 
sion may  have  been  transferred  to  other  persons.  All  de- 
scriptions of  things  personal,  however,  are  not  subject  to  this 
compulsory  sale,  but  only  those  tangible,  material  articles 
which  are  technically  known  as  chattels.  Things  in  action 
belonging  to  a  debtor  are  beyond  the  reach  of  an  execution. 
Of  course,  by  this  proceeding,  the  property  in  the  mov- 
ables seized  and  sold  is  transferred  from  the  original  owner 
to  the  purchaser  from  the  sheriff. 

§  834.  A  judgment  having  been  rendered  by  a  compe- 
tent court,  it  is  then  docketed,  or  in  other  words,  is  in- 
scribed or  registered  in  a  public  office,  in  a  manner  anal- 
ogous to  the  recording  of  deeds,  and  notice  of  its  existence 
is  thus  given  to  all  the  world.  In  some  States,  the  judg- 
ment is  a  lien,  or  encumbrance,  upon  the  lands  of  the  debtor 
from  the  time  it  is  thus  publicly  docketed.  This  lien,  as 
long  as  it  continues,  preserves  the  right  of  the  creditor  to 
peize  and  sell  the  lands,  although  they  may  have  been  subse- 
quertly  transferred  to  other  persons.  The  lien,  however, 
expvres  after  a  prescribed  immber  of  years.  Successive 
judgments  against  the  same  person  take  precedence  in  the 
order  of  their  docketing.     In  other  States  this  lien  does  not 


BAJSKKUPTCT.  4:89 

arise  from  the  mere  docketing  of  a  judgment,  but  from  the 
issuing  of  an  execution  to  enforce  it. 

§  835.  In  the  absence  of  sufficient  chattels  to  satisfy  a 
judgment,  the  lands  of  the  debtor  may  be  sold  for  that  pur- 
pose. I  shall  not  attempt  to  describe  the  various  statutory 
provisions  of  the  different  States,  which  regulate  the  sale  of 
lands  by  execution.  In  some,  the  lands  are  sold  at  auction 
by  the  sheriff  to  the  highest  bidder  under  such  restrictions 
and  regulations  as  prevent  a  sacrifice  of  property,  and  pro 
tect  the  debtor  and  other  creditors  from  loss,  by  allowing 
them  a  time  in  which  to  redeem  the  premises  from  the  pur- 
chaser ;  in  others,  they  are  valued  by  disinterested  persons, 
and  then  delivered  to  the  judgment  creditor  at  that  valua- 
tion. Whatever  be  the  particular  process,  the  property  in 
the  lands  is  taken  from  the  judgment  debtor,  and  trans- 
ferred to  the  purchaser,  by  virtue  of  an  execution  issued  to 
enforce  and  satisfy  the  judgment  of  a  competent  court. 

§  836.  (3.)  Bankrvptcy  and  InsoVoency. — A  method  of 
dealing  with  the  estates  of  bankrupt  traders  has  long  existed 
in  England,  by  which  their  entire  property  is  taken  from 
them  and  applied  towards  the  payment  of  their  debts.  This 
system  was  unknown  to  the  common  law,  and  is  the  crea- 
ture of  statutes.  It  does  not  apply  to  all  failing  debtors, 
but  is  confined  to  the  various  classes  of  traders  and  persons 
engaged  in  commercial  and  mercantile  pursuits.  The  two 
important  principles  of  this  system  are,  the  appropriation 
of  the  debtor's  estate  to  the  payment  of  all  his  debts  in 
equal  proportions,  and  his  subsequent  discharge  from  further 
liability  thereon.  After  the  commission  of  some  act  of 
bankruptcy  specified  by  statute,  judicial  proceedings  may 
be  instituted  against  the  debtor  to  declare  him  a  bankrupt, 
and  thereupon  his  entire  property  in  lands,  chattels,  and 
things  in  action,  vests  in  persons  specially  appointed  for  that 
purpose.  The  estate  thus  transferi-ed  from  th^  former 
owner  by  force  of  the  statute,  is  applied  rateably  to  the  satis- 
faction of  all  claims  against  him,  and  he  may  be  discharged 


i90  OF   PEOPEETT. 

bj  order  of  the  court  from  furtlier  liability  upon  any  debts 
or  demands  tlien  existing  against  him.  It  will  be  seen  that 
this  change  of  ownership  is  effected  without  tlie  consent  of 
the  party,  but  as  a  consequence  of  his  indebtedness  and  ac- 
tual or  presumed  inability  to  pay. 

§  837.  The  Constitution  of  the  United  States  grants  to 
Congress  the  power  to  pass  uniform  banirupt  laws  for  the 
whole  nation.  The  State  legislatures  possess  the  power  to 
enact  such  laws,  in  the  absence  of  any  action  by  Congress. 
There  are  now  no  general  bankrupt  laws  in  this  country, 
nor  have  the  individual  States  any  system  resembling  that 
of  England.  Most  or  all  of  the  States,  however,  have  adopt- 
ed insolvent  laws,  which  difler  greatly  in  their  special  pro- 
visions, but  which  are  all  intended  to  afford  to  an  insolvent 
debtor  an  opportunity  of  being  freed  from  his  indebtedness, 
or  from  imprisonment,  by  a  voluntary  surrender  of  his  en- 
tire possessions  to  his  creditors.  The  important  point  of 
distinction  between  these  statutes  and  the  English  system 
is,  that  the  transfer  of  his  estate  is  effected  by  the  debtor's 
own  act,  and  not  by  force  of  the  statute  itself.  The  Statea 
are  forl)idden  by  the  Federal  Constitution  from  passing. in- 
solvent or  other  laws  which  impair  the  obligation  of  con- 
tracts, but  agreements  made  subsequently  to  the  enactment 
of  such  statutes  are  not  withiu  the  prohibition. 

I  have  now  described  all  the  principal  methods  by 
which  property  in  things  real  or  personal  may  be  acquired 
or  transferred. 

SECTION   III. 

OF    TOE    KINDS  AXD    DEGREES    OF    PROPERTY  WHICH    MAY    BE    HAD 
IX    THIXGS. 

§  838.  Property  has  been  defined  to  be  the  dominion  or 
ownership  wliich  may  be  exercised  over  things.  Connected 
therewith  and  api)ertaining  thereto  as  necessary  elements, 
are  various  particular  rights,  which  do  not  all  however  be- 
long tu  every  species  of  ownership,  but  are  found  united  in 


ABSOLUTE   AND    QUALIFIED   PEOPERTY.  491 

one  alone.  Among  these  attributes  of  property  are  the 
right  to  possess,  use,  control,  or  consume  the  thing ;  the 
right  to  protect  and  defend  it ;  the  right  to  transfer  it. 
These  may  exist  and  be  enjoyed,  in  some  instances,  in  an 
unhmited,  in  others,  in  a  restricted  degree.  Thus  a  right 
of  property  is  sometimes  found,  not  in  connection  with  the 
actual  possession,  or  even  with  the  right  of  possession  ;  in 
other  cases  it  ends  with  the  death  of  the  owner,  so  that  its 
transmission  by  will,  distribution,  or  descent,  is  impossible  ; 
while  in  others  still  it  is  so  restrained  as  to  admit  of  no 
transfer.  Property  then,  in  respect  to  the  degrees  of  power 
over  the  thing  which  it  confers  upon  the  owner,  may  be 
divided  into  two  general  classes  ;  •  absolute,  and  qualified. 
Absolute  property  is  an  unrestricted  right  of  ownership, 
and,  when  united  with  actual  possession,  embraces  all  the 
particular  attributes  which  can  belong  to  proprietorship,  and 
constitutes  the  highest  dominion  which  can  be  held  over  i 
things  real  and  personal.  It  involves  an  enjoyment  of  the 
thing  unlimited  in  time,  and  untrammelled  in  manner.  It 
includes  the  capacity  to  control,  use,  or  consume  the  thing  at 
discretion  ;  and  to  transfer  it,  either  wholly  or  partially,  by 
any  method  known  to  the  law  ;  and  to  subject  it  to  be 
taken,  against  the  owner's  will,  in  satisfaction  of  his  debts. 
It  is,  then,  at  once  the  most  important  and  the  simplest 
species  of  property.  Qualified  property,  on  the  other  hand, 
is  limited  and  restricted,  and  wants  some  of  those  attributes 
which  pertain  to  the  higher  class.  This  limitation,  which 
marks  it  as  inferior,  may  relate  to  the  time  during  which 
the  right  of  property  shall  last,  in  which  case  it  affects  the 
quantity  of  interest  held  in  the  thing ;  or  it  may  relate  to 
the  essential  character  of  the  ownership,  in  which  case  it 
alfects  the  quality  of  the  interest.  These  two  general  kinds 
of  restraint  are  found  combined  in  most  species  of  qualified 
pro])erty,  for  any  abridgment  of  the  time  for  which  domin- 
ion may  be  enjoyed,  necessarily  abridges  the  extent  of  the 
dominion  itself.     But  there  are  limitations  upon  the  quality 


492  OF  PROPERTY. 

of  the  interest  that  may  be  had  in  things,  which  do  not  de- 
pend upon,  and  are  not  connected  with,  the  idea  of  the  du- 
ration of  ownership.  Property  may  also  be  considered  in 
reference  to  the  number  of  persons  in  whom  it  is  vested. 
Whether  absoUite  or  qualified,  it  may  be  enjoyed  by  a  sin- 
gle individual,  in  whom  all  the  rights  of  the  particular 
ownership  centre  ;  or  it  may  be  shared  by  several  persons, 
among  whom  the  total  dominion  is  distributed. 

These  general  principles  will  now  be  illustrated  and  ap- 
plied to  things  personal  and  things  real,  and  the  various 
kinds  and  degrees  of  property  in  each  will  be  briefly  de- 
scribed. 


KINDS   OP  PROPERTY  IN  THINGS   PERSONAL. 

§  839.  Absolute  property  may  be  predicated  of  all  species 
of  things  personal,  whether  material  objects,  as  chattels,  or 
immaterial  rights,  as  things  in  action,  and,  when  it  exists, 
is  always  accompanied  by  possession,  actual  or  constructive. 
When  the  right  of  possession  is  in  one  person,  even  tempo- 
rarily, and  the  property  is  in  another,  that  property  is,  so 
far  at  least,  qualified.  But  the  possession  of  the  absolute 
owner  may  be  constructive,  as  in  the  instance  of  articles  en- 
trusted to  a  servant  for  any  special  purpose.  Absolute 
property  over  movables  gives  free  power  to  use  them  at 
pleasure,  and  to  transfer  them  in  any  method  known  to  the 
law.  It  is  the  usual  and  familiar  species  of  ownership, 
which  alone  we  are  accustomed  in  ordinary  language  to  call 
property.  In  the  case  of  things  in  action,  the  object  of 
property  is  the  intangible  right,  and  not  the  material  ar- 
ticle. Thus  the  own^r  of  a  promissory  note,  a  bond,  or 
other  instrument  which  creates  an  obligation  to  pay,  has  no 
property  whatever  in  any  particular  money  in  the  hands  of 
his  debtor,  but  is  simply  clothdd  with  a  right  to  demand 
and  receive  a  certain  amount  of  money.  When  the  debt  ii 
paid,  the  thing  in  action  ceases,  and  the  property  of  the 


PEOPEKTT   IN    THINGS    PEESONAL.  493 

creditor  passes  over  from  the  mere  right,  and  attaches  to 
the  money  itself,  which  had  been  the  debtor's,  but  which 
is  now  transferred  to  the  other  party.  Absolute  property 
in  things  personal  ends  with  the  death  of  the  owner  ;  or  by 
a  voluntary  or  involuntary  transfer  of  the  article  from  him  ; 
or  by  any  act  of  his  which  creates  a  qualified  property  in 
another,  and  therefore  limits  that  in  himself. 

§  840.  Qualified  or  special  property  in  things  personal 
may  arise  in  various  ways,  and  is  of  many  kinds  and  de- 
grees ;  but  in  all  cases  it  is  created  to  subserve  some  special 
purpose,  and  confers  only  such  rights  and  powers  as  are 
necessary  therefor,  and  ceases  when  that  purpose  is  accom- 
plished. It  is  therefore  limited  both  in  respect  to  its  dura- 
tion, and  the  capacity  to  use  and  transfer,  which  accompanies 
it.  As  an  example  of  the  highest  kind  of  qualified  property, 
we  may  take  that  held  by  administrators  and  executors  in 
the  movables  of  the  deceased.  This  ownership  confers 
many  powers  as  to  the  use  and  control  of  the  things,  and 
even  the  capacity  to  transfer  them  and  create  an  absolute 
dominion  in  the  purchaser,  but  it  is  nevertheless  qualified 
in  that  the  trustee  does  not  himself  enjoy  the  benefits  of 
this  use  and  disposition.  He  is  made  owner  for  a  special 
purpose,  with  such  extensive  rights  as  are  necessary  to  ac- 
complish that  purpose,  but  which  fall  far  short  of  complete 
dominion.  So  when  articles  are  pawned  or  pledged  as  se- 
curity for  debt,  the  act  of  the  owner  creates  a  qualified  prop- 
erty in  himself  and  in  his  creditor.  The  latter  is  entitled 
to  possession  while  the  indebtedness  lasts,  with  power  to 
turn  his  special  into  an  absolute  ownership,  upon  the  debt- 
or's failure  to  pay  according  to  agreement ;  the  former  still 
retains  an  ownership  subject  to,  and  modified  by,  that  of  the 
creditor,  with  the  right  to  reclaim  possession  only  upon  the 
performance  by  him  of  his  engagements.  Many  other  in- 
stances might  be  given,  but  these  will  suffice  to  illustrate 
this  subject. 

§  841.  Things  personal  nr.ay  belong  to  a  single  owner,  or 


494  OF    PROPERTY. 

to  two  or  more  at  the  same  time.  In  tlie  former  case  the 
property  is  said  to  be  iu  severalty ;  in  tlie  latter,  it  is  either 
a  joint  ownership,  or  an  ownership  in  common.  The  vital 
distinction  between  joint  ownership  and  ownership  in  com- 
mon, is,  that  wlien  the  former  species  exists,  upon  the  death 
of  one  owner  his  share  vests  in  the  survivor,  who  thus  be- 
comes sole  proprietor ;  where  the  latter  exists,  upon  the 
death  of  one  owner,  his  share  does  not  vest  in  the  survivor, 
but  passes  to  his  administrators  or  executors,  to  be  distrib- 
uted according  to  the  general  rules  of  law.  In  this  country, 
joint  ownership  is  not  favored,  nor  does  it  exist  in  the  case 
of  things  embarked  in  trade  or  husbandry,  for  it  is  entirely 
incompatible  with  the  enterprise  and  facility  in  the  com- 
bination of  capital  which  are  the  life  of  business.  The 
property  held  by  partners  in  trade,  is  a  familiar  illustration 
of  ownership  in  common. 

n. 

KINDS   OF  PROPERTY  DT  THINGS   REAL. 

§  842.  While  the  mles  which  define  the  kinds  of  prop- 
erty in  movables  are  few  and  simple,  founded  upon  natural 
distinctions,  those  which  relate  to  property  in  things  real 
are  far  more  numerous  and  complicated,  and  are  based  in 
great  part  upon  ancient  institutions.  We  have  already  seen 
the  effects  of  the  feudal  ideas  upon  the  methods  of  trans- 
mitting property  in  lands,  and  we  should  find,  upon  a  care- 
ful examination,  that  the  same  causes  had  exerted  an  equally 
powerful  influence  in  moulding  the  law  as  to  the  divisions 
and  degrees  of  ownership,  and  the  rights  incident  thereto. 
The  English  doctrine  of  tenures,  which  lies  at  the  basis  of 
their  whole  system,  has  been  explained  in  a  former  chai3ter. 
I  have  also  there  defined  the  term  allodial  as  applied  to  that 
kind  of  ownership  which  is  not  held  from  any  superior,  but 
which  rests  alone  in  the  proprietor  himself  as  the  final  re- 
positary  of  dominion.  These  tenures,  derived  from  feudal 
institutions,  still  subsist  in  England,  and  all  land  is  there 


ABSOLUTE   ESTATES.  495 

said  to  be  held  from  some  superior  lord.  In  the  United 
States,  with  perhaps  a  few  exceptions,  these  feudal  ideas 
have  been  swept  away  by  the  legislatures,  and  all  property 
in  lands  is  allodial.  The  State  is  indeed  the  source  of  prop- 
erty, as  far  forth  as  lands  revert  to  it  in  the  cases  of  forfeit- 
ure and  escheat,  and  as  the  title  was  originally  derived 
from  it ;  but  this  is  not  a  feudal  relation,  but  one  which 
necessarily  belongs  to  the  body  politic,  in  its  capacity  of 
supreme  head  over  the  individuals  who  compose  it.  While 
we  have  rejected  the  ideas  of  feudalism,  we  have  retained 
some  of  its  nomenclature,  and  not  a  few^  of  its  effects,  yet 
the  change  has  rendered  our  law  much  more  simple  than 
that  of  England.  For  a  full  and  scientific  comprehension 
of  it,  however,  constant  reference  must  be  made  to  the  an- 
cient principles ;  but  in  so  elementary  a  work  as  this,  I 
shall  give  only  a  brief  outline  of  the  more  imj)ortant  divi- 
sions of  property  in  things  real,  and  of  the  incidents  there- 
of, as  they  are  recognized  by  our  general  jurisprudence. 

§  843.  An  estate  in  things  real  of  any  description  is 
the  interest  which  the  owner  has  therein,  so  that  if  a  man 
transfers  his  estate,  he  parts  with  his  entire  interest.  Es- 
tates may  be  absolute  or  qualified  ;  and  the  qualification 
may  relate  to  the  quantity  of  interest,  in  which  case  it  is 
measured  by  some  duration  of  time  which  is  limited  ;  or  it 
may  relate  to  the  quality  of  the  interest.  Estates,  either 
absolute  or  qualified,  may  be  considered  in  reference  to 
the  time  when  their  enjoyment  shall  commence ;  and  in 
reference  to  the  number  and  connection  of  their  owners. 
These  four  heads  will  be  considered  separately. 

§  844.  1.  Absohde  Estates. — An  absolute  property  in 
lands  is  termed  an  estate  in  fee  simple.  It  confers  an 
ownership  untrammelled  by  any  restraints  upon  alienation, 
either  by  conveyance  or  by  will ;  and  upon  the  death  of 
the  proprietor  intestate,  it  descends  to  his  heirs  generally, 
and  is  thus  called  an  inheritance.  It  is  unlimited  as  to 
duration,  and  can  only  be  terminated  or  abridged  by  the 


496  OF  PROPERTY. 

act  of  the  owner,  for,  in  the  absence  of  all  acts  which  would 
divert  it  from  snch  a  course,  it  will  desceud  from  ancestor 
to  heir  ad  infinitum.  Tlie  owner's  rights  extend  not  only 
to  its  absolute  transfer,  but  to  the  creation  of  any  other  or 
inferior  estates  out  of  it,  which  may  be  allowed  by  law. 
By  the  common  law,  the  use  of  the  word  heirs  is  neces- 
sary when  this  estate  is  to  be  created  by  deed,  so  that  the 
land  should  be  transferred  to  a  person  and  his  heirs.  "With- 
out this  formula,  only  an  estate  for  life  would  pass.  Many 
of  the  American  States,  however,  have  abolished  this  rule 
by  legislative  action.  The  term  fee  is  borrowed  from  the 
feudal  nomenclature,  and  signified  the  feud  or  fief  granted 
by  the  superior  lord  to  his  vassal,  and  held  by  the  latter  in 
consideration  of  the  required  services.  By  far  the  greater 
portion  of  private  lands  in  the  United  States  is  owned  by 
the  respective  proprietors  in  fee  simple,  so  that  this  is  the 
common,  almost  universal  species  of  dominion  with  which 
we  naturally  associate  the  idea  of  ownership  in  things  real. 
§  845.  The  English  law  also  recognizes  qualified  fees, 
in  which  the  interest  may  continue  forever  as  in  fee  simples, 
but  is  still  liable  to  be  terminated  at  the  happening  of  some 
uncertain  event.  Another  species  of  estates  in  fee,  familiar 
to  the  English  law,  are  those  called  estates  in  fee  tail,  or 
entailed  estates,  in  which  the  land  is  confined  in  its  descent 
to  certain  particular  heirs,  as,  to  the  heirs  of  the  original 
owner's  body,  in  which  case  the  property  would  be  preserved 
among  his  lineal  descendants  as  long  as  they  continued  ;  or 
to  his  male  heirs,  or  otherwise.  The  efiect  of  such  entail- 
ment is  to  destroy  the  power  of  absolute  transfer  by  any 
ordinary  methods  of  conveyance,  for  no  particular  owner 
for  the  time  being,  has  an  absolute  property  in  the  lands,  but 
they  must  follow  the  course  originally  marked  out  for  them 
in  the  first  deed  which  created  the  entail.  Tliis  species 
of  estates  was  invented  to  retain  lands  in  the  possession  of 
families,  and  thus  to  enlarge  their  power  and  importance, 
and  however  it  may  be  suited  to  the  princijjles  of  an  aris- 


ESTATES    FOK    LIEE.  497 

tocratic  form  of  government  and  society,  it  is  certainly  op- 
posed to  our  ideas  of  social  and  political  equality.  Estates  in 
tail  have  therefore  been  long  abolished  in  the  United  States. 

§  846.  2.  Qualified  Estates. — Under  this  general  divi- 
sion, I  shall  first  mention  those  estates  which  are  limited 
as  to  the  quantity  of  interest,  and  are  measured  by  some 
restricted  duration  of  time.  These  are  not  inheritances,  for 
when  they  extend  beyond  the  life  of  a  particular  owner, 
they  do  not  descend  to  his  heirs,  but  pass  to  his  executors 
or  administrators,  to  be  distributed  in  the  same  manner  as 
chattels.  Those  which  are  in  use  in  this  country  are  es- 
tates for  life,  and  estates  for  A^ears. 

§  847.  (1.)  Estates  for  Life. — Estates  for  life  are  such 
as  are  limited  in  their  duration  to  the  life  of  the  particular 
owner,  or  to  the  lives  of  some  other  person  or  persons,  and 
end  at  the  death  of  the  individual,  or  individuals,  upon 
whom  they  depend.  The  absolute  owner  of  lands  may 
directly  create  life  estates  therein,  either  by  deed  or  by  will. 
In  England,  such  a  disposition  of  property  is  very  common, 
in  making  provision  for  married  women  by  ante-nuptial 
settlements,  or  for  children,  by  will.  In  the  United  States, 
this  species  of  qualified  estates  is  much  more  rare,  although 
occasionally  resorted  to  in  family  settlements.  Although 
they  are  permitted  by  our  law,  yet,  as  the  habits  of  the 
people  are  opposed  to  any  restraints  upon  the  free  trans- 
mission of  landed  property,  and  as  during  the  continuance 
of  a  life  estate  this  power  of  absolute  transfer  is  suspended, 
they  have  not  grown  into  frequent  use. 

§  848.  There  are,  however,  life  estates  which  do  not  re- 
sult from  the  acts  of  parties,  but  which  are  created  by  the 
law,  upon  the  occurrence  of  certain  fixed  events.  Tliese 
are  known  as  the  estate  by  courtesy,  and  dower.  An  estate 
by  courtesy  is  the  life  interest  which  a  surviving  husband 
has,  after  the  death  of  his  wife,  in  lands  which  she  owned 
absolutely,  or  in  fee,  during  the  marriage,  but  does  not  have 
an  existence  unless  a  child  had  been  born  of  the  marriage, 
32 


i98  OF   PEOPERTT. 

who  might  possibly  inherit  from  the  mother.  When  all 
these  facts  are  found  in  connection, — a  marriage,  the  birth 
of  a  child,  and  the  piior  death  of  the  wife, — the  common 
law  gTants  to  the  hnsband  an  estate  for  life  in  the  lands 
which  she  owned  in  fee  at  the  time  of  her  deatli.  This 
right  of  the  husband  has  been  curtailed,  or  even  abolished 
by  statute  in  some  of  the  American  States,  and  it  would 
seem  that  it  no  longer  exists  in  those  whose  legislation  has 
clothed  wives  with  the  unlimited  power  over  their  property 
which  belongs  to  single  women. 

§  8i9.  Dower  has  already  been  defined  as  that  life  inter- 
est which  the  widow  has  in  the  third  part  of  all  the  lands 
of  which  the  husband  was  owner  in  fee  at  any  time  during 
the  marriage,  and  to  which  she  had  not  voluntarily  aban- 
doned her  claim.  The  wife's  interest  commences  at  the 
marriage,  and  attaches  to  all  lands  then  owned  or  subse- 
quently acquired  by  the  husband,  and  during  the  wedlock 
is  a  lien  which  cannot  be  defeated  by  any  act  of  his.  It  is, 
of  course,  subordinate  to  all  mortgages,  judgments,  or  other 
encumbrances  which  affected  the  land  prioi-  to  tlie  mar- 
riage, or  to  the  pm'chase  by  the  husband,  but  has  precedence 
of  all  such  encumbrances  as  he  himself  may  create  during 
the  marriage  without  her  consent  and  joint  act  with  him. 
To  this  general  rule  there  is  the  single  exception,  that  when 
tlie  husband  purchases  land,  and  at  the  same  time  gives 
back  a  mortgage  for  the  whole,  or  a  part  of  the  purchase 
money,  the  lien  of  such  mortgage  attaches  before  that  of 
the  wife's  dower.  If  then  the  husband  should  convey  away 
his  lands,  without  joining  the  wife  M'ith  him  in  such  a 
manner  as  to  cut  off  lier  claim,  her  right  of  dower  will  still 
follow  the  land  in  whosesoever  hands  it  may  be  at  her  hus- 
band's death.  The  wife's  dow^er  is  then  a  possible  encum- 
brance, which  may  greatly  interfere  with  the  purchase  of 
lands,  and  for  this  reason,  some  of  the  States  have  changed 
the  common  law,  by  enacting  that  dower  shall  only  apply 
to  Buch  lands  as  are  owned  by  the  husband  at  his  death. 


DOWER.  499 

§  850.  ISTo  act  of  the  husband,  done  before  the  marriage, 
during  its  continuance,  or  at  its  close  by  his  death,  can  avail 
to  deprive  the  wife  of  this  interest.  She  may,  however,  de- 
stroy, or,  in  technical  language,  bar  it  in  various  ways. 
When,  by  an  ante-nuptial  agreement  to  which  she  assents, 
a  competent  provision  is  made  for  her,  as  a  separate  estate 
to  last  through  her  possible  widowhood,  her  entire  right  of 
dower  is  given  up  and  bari-ed.  "When  such  provision  is 
made  subsequent  to  the  marriage,  and  is  intended  to  be  in 
lieu  of  dower,  she  is  not  bound  thereby,  but  may  elect  be- 
tween the  two.  She  has  the  same  privilege  of  choice,  when 
the  husband  bequeathes  property  to  her  by  will,  which  is 
expressly  stated  to  be  in  place  of  her  dower.  Unless  such 
intention  is  plainly  manifested  by  the  will,  she  takes  both 
the  dower  and  the  bequest.  The  ordinary  method  for  the 
wife  to  bar  her  right  of  dower  in  this  country  is  simple  and 
easy.  Upon  the  husband's  conveyance  by  absolute  deed 
or  by  mortgage,  she  has  only  to  join  him  in  the  execution 
of  the  instrument  as  one  of  the  parties  thereto,  and  to  ac- 
knowledge it  before  a  proper  officer  to  have  been  voluntarily 
done,  and  her  claim  is  forever  cut  off.  The  practice  of  both 
husband  and  wife  uniting  in  deeds  and  mortgages  is  so 
common,  that  very  few  cases  arise  where  the  widow's  in- 
terest attaches  to  any  lands  except  those  owned  by  the  hus- 
band at  his  death. 

§  851.  After  the  husband's  death,  the  widow's  dower 
may  be  assigned  to  her,  or  in  other  words,  the  specific  one 
third  of  the  lands  may  be  set  apart  for  her  use.  Should  the 
heirs  or  devisees  neglect  or  refuse  to  make  such  an  appor- 
tionment, she  may  compel  it  by  an  action.  In  most  of  the 
States,  a  more  summary  method  of  assignment,  under  the 
direction  of  the  Probate,  Surrogate,  or  other  similar  courts, 
is  in  general  use. 

§  852.  The  owner  of  a  life  estate  of  any  kind  has  rights 
of  property  far  more  restricted  than  those  which  belong  to 
absolute  proprietors.     He  cannot  so  use  the  land  as  to  do 


500  OF  PROPERTY. 

any  permanent  injury  to  the  inheritance,  but  may  cut  such 
wood  as  is  required  for  fuel,  fences,  and  other  necessary 
improvements.  He  may,  of  course,  use  the  soil  for  all  pur- 
poses of  cultivation,  and  when  the  estate  is  terminated  by 
his  death,  his  representatives  may  take  such  annual  crops 
as  are  growing  at  the  time.  He  cannot  convey  the  land 
for  any  period  longer  than  his  own  life,  but  within  that 
limit  he  may  transfer  his  interest  to  another,  or  it  may  be 
taken  from  him  on  execution. 

§  853.  (2.)  Estates  for  Tears. — These  are  the  lowest 
species  of  estates,  because  their  duration  is  limited  to  a 
fixed  and  certain  period.  They  are  created  by  lease,  and 
confer  a  right  to  the  possession  and  profits  of  land  for  a 
determinate  period,  with  the  recompense  of  rent.  However 
protracted  their  duration,  even  though  for  a  thousand  years, 
they  are  still  considered  as  inferior  to  life  estates.  The  per- 
son who  creates  the  interest,  is  called  the  lessor,  the  one  who 
receives  it,  the  lessee.  By  statutes  in  England,  and  in  this 
country,  all  leases  for  a  time  exceeding  a  certain  short  period 
(varying  from  one  to  three  years  in  the  difierent  States), 
must  be  in  writing.  The  powers  of  the  lessee  vary  according 
to  the  agreements  made  between  himself  and  his  lessor.  He 
may,  unless  forbidden  by  the  provisions  of  the  lease,  either 
entirely  transfer  his  rights  to  another,  or  underlet  for  a 
shorter  period  than  his  own  estate. 

§  854.  In  describing  these  various  species  of  estates,  it 
must  be  understood,  tliat  any  or  all  of  them  may  co-exist 
at  owd  time  in  respect  to  the  same  land.  Indeed,  there 
must  be  an  estate  in  fee  held  by  some  person  in  all  lands, 
in  whose  possession  soever  they  may  actually  be,  and  what- 
ever qualified  estates  therein  may  also  be  in  existence. 
Thus,  upon  the  death  of  an  absolute  owner  of  lands  intes- 
tate, an  estate  in  fee  in  the  whole  must  descend  to  and  be 
vested  in  his  heirs ;  at  the  same  time,  the  widow  is  owner 
of  a  life  estate  in  the  one  third,  and  after  her  dower  is  set 
apart,  slie  may  lease  her  property,  or  any  portion  thereof 


MORTGAGE.  501 

to  tenants.  In  such  cases,  three  degrees  of  interest  in  the 
same  land  would  be  simultaneous.  The  lessee  for  years 
would  have  actual  possession ;  the  widow  would  have  no 
right  of  immediate  possession,  but  has  a  claim  to  rent ; 
while  the  owner  of  the  fee  simple  has  only  a  bare  right  of 
property,  and  can  only  join  a  right  of  possession  to  that 
property,  at  the  death  of  the  widow. 

§  855.  I  shall  next  briefly  describe  those  qualified  estates 
in  which  the  limitation  has  more  special  reference  to  the 
quality  of  the  interest  held  and  enjoyed  by  the  owner.  As 
has  been  already  remarked,  this  kind  of  restriction  is  also 
found  in  connection  with  those  qualified  estates  which  de- 
pend more  directly  upon  the  element  of  duration.  Thus, 
in  leases  for  years,  it  is  common  for  the  powers  of  the  ten- 
ant to  be  circumscribed  in  various  ways  by  the  agreements 
of  the  parties,  so  that  in  addition  to  the  restraints  which  the 
law  couples  with  the  mere  fact  of  a  fixed  and  definite  termi- 
nation to  the  right  of  property,  the  parties  may  add  others 
which  aflPect  rather  the  essential  character  of  the  ownership. 
The  two  species  of  interest  in  lands  which  I  shall  mention 
in  this  class,  are  Mortgages,  and  Uses  and  Trusts. 

§  856  (3.)  Mortgages. — A  mortgage  of  lands  is  a  con- 
veyance thereof,  by  way  of  pledge  for  the  security  of  debt, 
and  to  become  void  upon  payment  of  it.  The  person  who 
conveys,  is  called  the  mortgagor,  and  the  one  who  receives, 
the  mortgagee,  and  they  generally  stand  to  each  other  in 
the  relation  of  debtor  and  creditor.  The  difi'erent  estates 
or  interests,  with  the  rights  and  liabilities  belonging  thereto, 
of  these  two  parties,  I  will  briefly  consider.  The  instrument 
is  generally  a  conveyance  in  the  form  of  a  deed  from  the 
mortgagor,  whereby  he  transfers*  to  the  mortgagee  what- 
ever estate  he  may  have  in  the  lands,  with  the  clause  added 
that  this  transfer  is  intended  as  a  security  for  the  payment 
of  a  certain  sum  of  money  by  the  former  party  to  the  latter, 
and  the  stipulation  that  upon  such  payment  at  a  specified 
time,  the  conveyance  shall  be  void.     This  provision  is  tech- 


502  OF   PKOPERTT. 

nically  known  as  the  condition  of  the  mortgage.  It  is  now 
customary  to  add  also  a  clause  empowering  the  mortgagee 
to  sell  the  premises  upon  a  default  in  the  payment  of  the 
sum  secured,  which  is  called  a  power  of  sale. 

§  857.  Mortgages  have  been  known  in  England  from  an 
early  day,  and  the  rules  of  the  ancient  common  law  in  re- 
lation  thereto  were  exceedingly  strict   and    severe.      The 
conveyance  was  considered  as  working  an  actual  transfer 
of  the  whole  property;    the  mortgagee  was   regarded  as 
the  owner  of  the  estate,  and  as  such,  might  immediately  take 
and  hold  possession  thereof,  subject  only  to  have  his  interest 
and  his  possession  ended  by  the  payment  of  the  debt  at  the 
time  fixed  in  the  deed.     The  mortgagor  had  no  ownership 
in  the  land,  but  only  the  right  to  recover  it  by  an  exact  ful- 
filment of  his  engagements  at  the  appointed  time.     He  was 
held  strictly  to  his  contract,  and  if  the  day  for  payment  had 
passed  by,  the  law  declared  his  rights  forfeited,  the  condi- 
tion broken,  the  estate  of  the  mortgagee  absolute,  and  re- 
fused to  compel  him  to  accept  the  debt,  and  return  the  land. 
These  rules  of  the  law  were  certainly  inequitable  to  the  last 
degree,  and  the  courts  of  equity  long  since  interposed  to 
modify  and  remedy  them,  and  to  equalize  the  rights  of 
the  parties,  and  to  prevent  these  securities  from  being  mere 
instruments  to  work  injustice.     They  began  by  introducing 
the  rule  that  time  of  payment  was  not  an  essential  part  of 
the  contract,  and  that  the  mortgagee  must  be  satisfied  if 
he  receive  his  money  and  interest,  even  though  the  day  of 
payment  had  passed,  and  must  thereupon  surrender  up  the 
land  to  the  mortgagor.     From  this  commencement,  these 
courts  have  steadily  proceeded,  until  they  have  completely 
established  the  doctrines  that  mortgages  are  merely  securi- 
ties for  the  payment  of  debts ;  that  the  debt  is  the  principal 
thing,  and  the  mortgage  is  only  collateral  to  it.     The  inter- 
ests and  liabilities  of  the  parties  as  defined  by  Courts  of 
Equity,  and  based  upon  this  general  principle,  are  now  well 
settled  in  England  and  throughout  the  United  States,  and 


FORECLOSURE  OF  MORTGAGES.  503 

the  old  rules  of  the  common  law  have  long  been  abandoned. 
Indeed,  in  several,  if  not  most  of  the  States,  the  results  of 
the  action  of  the  Courts  of  Equity  have  been  incorporated 
into  the  statutory  legislation. 

§  858.  The  mortgage  is  now  treated  only  as  a  security 
for  the  debt,  and  the  mortgagor  continues  to  be  the  owner 
of  the  fee,  which  is  subject  only  to  the  lien  or  encumbrance 
created  by  his  deed.  His  estate  is  technically  called  an 
equity  of  redemption,  and  is  to  all  intents  and  purposes  the 
absolute  fee,  and  as  such  will  descend  by  inheritance,  or 
may  be  devised  by  will,  conveyed  by  deed,  leased,  mort- 
gaged subsequently,  or  taken  and  sold  upon  execution. 
The  mortgagor  is  the  actual  owner,  and  may  exercise  all 
the  rights  of  ownership  provided  he  does  nothing  to  impair 
the  security.  His  rights  and  interest  are  not  even  injured 
by  his  mere  default  to  pay  the  debt  at  the  stipulated  time, 
but  continue  until  they  are  foreclosed  and  the  lands  sold  as 
hereafter  described.  At  any  time  before  such  foreclosure 
and  sale,  he  may  pay  the  debt  and  free  his  land  from  the 
encumbrance,  and  may  force  the  mortgagee,  by  an  action, 
to  accept  the  money  should  he  refuse.  This  right  of  re- 
demption belongs  not  only  to  the  mortgagor,  but  to  all 
other  persons  who  have  a  fixed  interest  in,  or  claim  upon, 
the  property ;  to  the  heirs,  devisees,  purchasers,  judgment 
creditors,  subsequent  mortgagees  and  others.  The  effect  of 
the  mortgage  is  then  simply  to  create  a  specific  lien  and 
encumbrance  upon  the  mortgagor's  estate,  and  to  render  it 
liable,  upon  continued  default  in  payment  of  the  debt,  to 
be  taken  from  him,  or  from  whomsoever  may  have  derived 
ownership  from  him,  and  to  be  sold  in  satisfaction  of  the 
claim. 

§  859.  The  mortgagee  has,  in  fact,  no  estate  in  the  land, 
but  only  a  chattel  interest,  or  thing  in  action,  which  may 
be  transferred,  and  which  passes  to  the  executor  or  admin- 
istrator at  the  death  of  the  owner  thereof.  The  rules  which 
prevail  throughout  the  United  States  in  reference  to  the 


504  OF  PKOrEETY. 

recording  of  deeds  of  conveyance  and  tlie  priority  among 
them,  apply  also  to  mortgages.  The  mortgagee,  or  the  per- 
son to  whom  his  interest  may  have  been  transferred,  has, 
however,  the  j)ower  to  cut  off,  destroy,  or  in  technical  lan- 
guage, to  foreclose,  the  mortgagor's  mterest  and  dej^rive 
him  of  his  estate,  when  a  continued  default  has  been  made 
in  payment  of  the  debt.  This  may  be  done  in  either  of 
three  methods ;  two  of  which  are  effected  by  means  of  ac- 
tions, and  the  third,  without  any  judicial  proceeding.  One 
of  these  is  termed  a  strict  foreclosure,  in  which  the  mort- 
gagee institutes  an  action  in  a  Court  of  Equity  to  procure  a 
judgment  declaring  the  lands  to  be  his  absolute  property, 
Bj  the  second  method  a  judgment  is  obtained  ordering  the 
premises  to  be  publicly  sold  under  the  direction  of  the 
court,  and  the  proceeds  applied  in  satisfaction  of  the  debt. 
In  this  action  the  rules  of  equity  procedure  require  that  all 
persons  having  interests  in,  or  claims  upon,  the  land  arising 
subsequently  to  the  mortgage,  should  be  made  parties,  in 
order  that  their  rights  may  be  foreclosed  together  with 
those  of  the  mortgagor  ;  but  at  any  time  before  the  premises 
are  actually  sold,  the  mortgagor  or  owner  of  the  land  may 
pay  the  demand,  and  the  mortgage  will  therefore  be  satis- 
fied ;  or  a  subsequent  encumbrancer  by  mortgage  or  judg- 
ment may  pay  the  claim,  and  will  thereupon  be  entitled  to 
a  transfer  of  the  mortgage  and  judgment  to  himself,  to  hold 
as  security  for  his  advances.  The  purchaser  of  the  premises 
at  the  public  sale  takes  them  free  from  all  subsequent  en- 
cumbrances which  were  foreclosed  by  the  action  ;  and  even 
if  a  subsequent  mortgagee,  or  judgment  creditor,  or  other 
l^erson  having  an  interest,  should  not  have  been  made  a 
party  to  the  action,  he  M'ould  only  have  a  right  to  refund 
to  the  purchaser  the  amount  of  money  which  he  had  ad- 
vanced, and  thereupon  to  be  substituted  in  his  stead,  and 
to  succeed  to  the  })urchase.  The  money  arising  from  the 
sale  is  applied  first  to  the  payment  of  the  mortgagee's  claim, 
and  when  that  is  fully  satisfied,  to  the  discharge  of  subse- 


USES    AND   TETJSTS.  506 

quent  liens  and  encumbrances  by  mortgage  or  judgment  in 
tlieir  order.  If  any  surplus  remains,  it  belongs  to  the  mort- 
gagor, or  to  the  person  whose  rights  of  ownership  were 
destroyed  by  the  foreclosure  and  sale.  The  third  method 
of  foreclosure  without  an  action  consists  in  a  public  sale 
made  by  the  mortgagee,  or  owner  of  the  mortgage,  in  pur- 
suance of  the  power  contained  in  the  instrument  itself.  This 
proceeding  is  regulated  in  the  different  States  by  statute. 
The  sale  must  be  publicly  advertised  for  a  specified  time ; 
notice  must  be  given  to  subsequent  encumbrancers ;  the 
same  rights  of  redemption  exist  as  in  the  preceding  case ; 
and  the  same  results  follow  the  sale. 

§  860.  It  is  evident  that  these  rules  introduced  by  the 
Courts  of  Equity,  are  well  calculated  to  protect  the  rights 
of  all  parties.  The  mortgagor  does  not  forfeit  his  owner- 
ship by  a  simple  failure  to  pay  at  the  appointed  day  ;  and 
when  the  land  is  sold,  the  proceeds  are  applied  as  far  as  pos- 
sible to  the  discharge  of  all  the  encumbrances  upon  it,  and 
to  that. end  it  is  for  the  interest  of  all  parties  that  it  should 
not  be  sacrificed,  but  should  sell  for  its  full  value. 

The  object  of  the  whole  equitable  doctrine  in  relation  to 
mortgages,  is,  to  enable  the  land  itself  to  satisfy  all  claims 
and  liens  that  may  be  upon  it.  This  whole  subject  is  a  fine 
illustration  of  the  principles  and  methods  of  equity,  which 
are  governed  by  no  mere  technical  rules,  but  strive  to  do 
exact  justice  among  all  persons  interested  in  the  same  sub- 
ject matter. 

§  861.  (4.)  Uses  and  Trusts. — A  general  description  of 
uses,  and  of  their  derivation  from  the  Roman  ^c^^i  commissa^ 
having  been  given  in  a  former  chapter,  it  will  be  necessary  to 
add  but  little  to  what  has  already  been  said.  In  its  original 
meaning,  a  use  is  where  the  legal  estate  is  vested  in  A.,  in 
trust  that  B.  shall  take  the  profits,  and  that  A.  shall  make 
such  disposition  of  the  land  as  B.  shall  direct.  This  species 
of  ownership  was  introduced  by  the  ecclesiastics  in  the 
reign  of  Edward  III.  or  Richard  II.  to  evade  certain  statutes 


506  OF   PKOPERTT. 

which  forbade  conveyances  to  be  made  to  religions  houses. 
Proving  successful  for  this  purpose  they  were  adopted  by 
individuals  in  making  transfers  to  each  other,  and  at  length 
became  very  common.  This  was  at  a  time  when  the  feudal 
incidents  before  described  were  in  full  force.  A.,  owning 
an  absolute  estate  in  lands,  would  convey  it  to  B.  by  a 
known  and  legal  method,  with  an  understanding  that  the 
latter  should  hold  the  land  for  A.'s  benefit,  or  for  the  benefit 
of  some  third  person.  By  this  transfer  B.  became  the  legal 
owner,  and  his  right  was  the  only  one  acknowledged  by 
courts  of  law.  The  interest  of  A,  in  the  one  case,  or  of  the 
third  person  in  the  other,  was  called  the  use.  The  Conrt 
of  Chancery,  however,  treated  this  use  as  a  valid  interest, 
and  enforced  the  rights  of  the  holder  thereof,  so  that  in 
time  uses  became  an  acknowledged  species  of  estates.  They 
might  be  created  for  years,  for  life,  or  in  fee.  This  inven- 
tion began  to  work  a  complete  change  in  the  law  of  real 
property,  for  it  rendered  the  feudal  incidents  entirely  nuga- 
tory, and  thereby  destroyed  the  rights  of  the  lords.  The 
rules  which  had  been  contiived  by  courts  of  law,  applied  to 
a  certain  well-known  kind  of  ownership  based  upon  feudal 
ideas,  and  the  logic  of  the  system  would  not  permit  an  ex- 
tension of  these  rules  to  interests  in  lands  of  an  entirely 
different  nature.  Thus  the  holder  of  a  use  might  readily 
transfer  his  light  of  property ;  he  might  devise  it  by  will, 
although  wills  of  land  were  not  then  permitted ;  and  his 
estate  might  be  altered  and  modified  in  many  ways  at  his 
pleasure,  for  it  did  not  come  within  any  of  the  definitions  and 
restrictions  of  the  ancient  law.  His  interest  was  called  an 
equitable  estate ;  while  the  bare  legal  title  without  any  advan- 
lage  of  ownership,  remained  in  the  person  to  whom  the  land 
had  been  conveyed  subject  to  the  use.  The  ])rivileges  of  the 
feudal  lords  were  so  much  interfered  Mnth,  that  in  the  27th 
year  of  the  reign  of  Henry  VIH.,  a  statute  was  passed  with 
the  intention  of  destroying  this  judicial  innovation  upon  the 
old  6imi»licity  of  the  law.     It  was  enacted  in  substance,  that 


STATUTE   OF   USES TRUSTS.  507 

where  a  conveyance  of  land  was  made  to  A.  for  the  use  of 
B.,  no  estate  at  all  should  vest  in  A.,  bat  the  whole  right 
of  property  should  immediately  pass  to  B.,  who  should  be- 
come owner  of  a  complete  legal  estate  of  the  same  degree 
and  character  as  the  equitable  estate  or  use,  which  he  would 
have  been  owner  of,  prior  to  the  statute. 

§  862.  The  result  of  this  statute  was  to  permit  persons  to 
create  new  kinds  of  legal  estates,  which  the  courts  of  law 
would  reccguize,  and  to  introduce  new  kinds  of  convey- 
ances. Almost  all  land  in  England  is  now  held  and  con- 
veyed in  accordance  with  principles  and  rules  growing  out 
of  this  legislation,  so  that  the  English  law  of  real  property 
has  been  described  as  the  result  of  feudal  ideas  engrafted 
upon  a  Koman  stock.  I  need  not  stop,  in  so  elementary  a 
work  as  this,  to  describe  these  estates  and  modes  of  convey- 
ance, which  form  one  of  the  most  intricate  and  abstruse 
portions  of  the  English  law,  but  which  are  happily  little 
used  in  this  country. 

§  863.  The  statute,  however,  was  not  able  to  accomplish 
its  intention,  for  the  legislation  of  courts  proved  more  power- 
ful than  that  of  Parliament.  In  giving  a  construction  to 
this  act,  the  courts  of  law  decided  that  when  a  conveyance 
was  made  to  one  person  to  the  use  of  another  to  the  use  of 
a  third,  the  whole  legal  estate  passed  directly  to  the  second, 
and  vested  in  him,  and  that  the  use  to  the  last  was  inopera- 
tive. At  this  point  the  courts  of  Equity  again  interfered, 
and  declared  that  although  the  whole  legal  ownership  re- 
sided in  the  second  individual,  the  third  possessed  an  in- 
terest which  should  be  protected,  and  a  right  which  should 
be  enforced.  Tliis  interest  is  called  a  trust ;  the  estate  is  a 
trust  estate,  and  is  identical  in  principle  with  the  ancient 
use  before  the  statute  of  Henry  YIIL  A  trust  then,  as  an. 
interest  in  lands,  is  a  creature  of  Equity,  and  is  not  recog- 
nized by  law  courts,  unless  otherM'ise  provided  by  statutes. 
The  person  who  holds  the  legal  title  is  called  the  trustee,  and 
the  one  for  whose   benefit  the  transfer  is  made,  is  often 


508  OF   PROPERTY. 

termed  the  beneficial  ovrner,  or  beneficiary.  Unless  other- 
wise controlled  bv  statutes,  trust  estates  are  governed  by 
many  of  the  rales  which  apply  to  the  ordinary  legal  estates 
in  land  ;  they  may  be  for  years,  for  life,  or  in  fee  ;  they  may 
be  inherited  by  the  heirs  of  the  beneficiary,  or  he  may  de- 
vise his  interest  by  will. 

§  864.  In  addition  to  trusts  expressly  created  by  a  con- 
veyance or  by  will,  courts  of  Equity  have  applied  the  doc- 
trine with  great  power  in  many  otlier  classes  of  cases,  to 
promote  substantial  justice.  If  land  should  be  purchased 
by  one  person  in  his  own  name,  but  the  consideration  money 
should  be  actually  paid  at  the  time  by  another,  Equity  will 
treat  the  purchaser  as  ti-ustee  for  the  other,  and  regard  the 
latter  as  the  beneficial  owner.  In  like  manner,  executors, 
administrators,  guardians,  assignees  of  insolvent  debtors, 
and  all  persons  who  hold  and  manage  the  property  of  others 
for  any  special  purpose,  are  considered  as  trustees,  and  are. 
amenable  to  the  Equity  courts  for  the  faithful  discharge  of 
their  duties.  Another  class  of  trustees  are  those  who  have 
the  management  of  corporations.  These  examples  last  given 
are  not  to  be  considered  as  relating  entirely  to  the  kind  of 
ownership  which  may  be  had  in  lands,  but  rather  as  illus- 
trations of  the  manner  in  which  Equity  treats  those  who  are 
charged  with  such  a  particular  duty  as  requires  the  posses- 
sion and  control  of  the  property  of  third  persons. 

§  865.  The  trusts  in  use  in  England  and  America  are  of 
two  kinds,  active  and  passive.  In  the  former  some  confidence 
and  duty  is  reposed  in  the  tinistee,  and  he  is  clothed  with 
the  actual  power  of  disposition  and  management  of  the 
land,  or  chattels,  and  for  that  pui'pose  holds  the  possession  ; 
in  the  latter,  the  trustee  has  the  bare  legal  title  ;  is  the  mere 
nominal  owner,  witli  no  powers  over  the  subject  matter.  The 
instances  mentioned  in  §  864  are  examples  of  active  trasts. 
Otliers  are  those  in  which  lands  are  conveyed  to  a  trustee,  to 
sell,  mortgage,  or  lease  them  for  the  benefit  of  creditors, 
legatees,  or  others  ;  or  to  hold  and  manage  them  and  receive 


REMAINDERS.  50& 

the  rents  and  profits  and  apply  tliem  to  the  use  of  any  per- 
son. Trusts,  as  a  species  of  private  ownership,  created  by 
deed  or  will,  are  comparatively  rare  in  the  United  States, 
and  in  some  of  the  States  the  whole  subject  has  been  re- 
modelled and  reconstructed  by  statute. 

§  866.  3.  When  the  enjoyment  of  estates  may  commence^ 
— In  respect  to  the  time  when  the  rights  of  ownership  may 
be  enjoyed,  estates  are  said  to.be  either  in  possession,  or  in 
expectancy  ;  in  possession,  when  the  right  of  ownership  is 
united  with  the  actual  possession  and  use  of  the  land ;  in 
expectancy,  when  this  use  and  possession  are  necessarily 
deferred  to  some  future  time.  Eight  of  property  generally 
involves  the  right  of  an  immediate  possession,  unless  some 
intermediate  estate  or  interest  exists,  wliich  has  the  effect 
to  postpone  the  possession  itself.  ISTothing  need  be  said  in 
particular  of  estates  in  possession.  They  are  the  usual  form 
of  ownership,  and  have  been  impliedly  described  through- 
out the  present  chapter. 

§  867.  Estates  in  expectancy  are  divided  into  two  classes 
known  as  remainders  and  reversions.  It  is  to  be  noticed 
that  the  term  expectancy  is  used  in  a  technical  sense,  and 
that  these  estates  are  something  more  than  a  mere  hope  of 
some  time  becoming  owner  of  land.  During  the  lifetime  of 
a  father,  his  children  may  have  a  strong  expectation  of  suc- 
ceeding to  his  lands  and  goods  after  his  death,  but  they 
have  no  estate  whatever,  their  hope  is  not  a  species  of  prop- 
erty. Expectant  estates  are  more  than  such  bare  possibili- 
ties, they  are  actual  interests  in  land. 

§  868.  Kemainders  are  always  created  by  the  act  of  an 
owner  conveying  by  deed,  or  devising  by  will.  Thus  if  a 
person  who  holds  an  estate  in  fee  simple,  should  devise  the 
land  to  his  wife  during  her  life,  and  after  that  to  his  children 
in  fee,  at  his  death  the  widow  would  immediately  become 
owner  of  a  life  estate  in  possession,  and  the  children,  owners 
of  an  estate  in  fee  in  reniainder.  Their  interest  is  a  present 
right  of  property,  but  does  not  become  enjoyable  until  the 


510  OF  PKOPEETY. 

happening  of  a  future  event,  and  is,  in  legal  language,  a 
remainder.  If  an  absolute  owner  of  land  should  by  one 
deed  grant  an  estate  to  A.  for  twenty  years,  and  after  the 
expiration  of  that  period,' to  B.  for  life,  and  after  his  death, 
to  C.  in  fee,  A.  would  receive  an  estate  for  years  in  posses- 
sion, while  the  interests  of  B.  and  C,  although  existing 
rights  of  property,  would  be  remainders.  These  illustra- 
tions will  make  the  definition  of  a  i-emainder  more  clear. 
It  is  described  by  Lord  Coke,  as  a  remnant  of  an  estate  in 
land,  depending  upon  a  particular  prior  estate  created  at 
the  same  time  and  by  the  same  instrument,  and  limited  to 
arise  immediately  on  the  determination  of  that  prior  estate, 
and  not  in  abridgment  of  it.  Another  writer  defines  it  to 
be  an  estate  limited  to  commence  in  possession  at  a  future 
day,  on  the  determination,  by  lapse  of  time,  or  otherwise, 
of  a  precedent  estate  created  at  the  same  time.  In  the  illus- 
trations above  given,  the  precedent  or  particular  estates  were 
the  widow's  life  interest,  in  the  one  case,  and  the  estate  for 
years,  in  the  other.  Remainders  do  not  then  have  reference 
to  the  quantity  or  the  quality  of  the  interest,  but  solely  to 
the  time  of  its  enjoyment ;  they  may  therefore  be  created 
in  any  description  of  estates.  Estates  for  years,  for  life,  or 
in  fee,  may  be  granted  as  remainders  ;  the  same  is  also  true 
of  uses  and  trusts.  The  elementary  nature  of  this  work  does 
not  permit  me  to  give  any  description  of  the  classes  of  re- 
mainders, nor  any  statement  of  the  very  intricate  and  ab- 
struse rules  which  govern  them.  Indeed,  to  the  practising 
lawyer  of  this  country,  these  rules  are  chiefly  to  be  studied 
as  matters  of  curiosity,  and  as  means  of  obtaining  a  scien- 
tific knowledge  of  the  common  law  as  a  whole,  rather  than 
as  piinciples  which  will  be  often  applied  in  business. 

§  869.  One  important  eff'ect  of  creating  successive  estates 
in  remainder  either  by  will  or  deed,  is  to  suspend  for  the 
time  the  unlimited  poM^er  of  alienation  over  the  land.  Tlius 
if  an  estate  's  conveyed  to  A.  for  life,  and  a  remainder  to  B. 
for  life,  and  a  remainder  to  C.  in  fee,  the  free  transfer  of  the 


CONNECTION   OF   OWNERS.  611 

land  is  suspended  during  tlie  lives  of  A.  and  B.  A.  cannot 
convey  the  absolute  interest  in  derogation  of  the  rights  of 
B.,  and  when  the  latter  comes  into  possession,  he  is  under  a 
similar  restriction.  It  would  be  possible  then  for  an  abso- 
lute owner,  by  the  provisions  of  a  deed  or  will,  to  tie  up  his 
land  for  many  generations,  and  thns  to  withdraw  it  from 
the  commerce  of  the  country.  The  policy  of  our  legislation 
in  reference  to  landed  property  has  been  to  prevent  as  far  as 
possible  any  attempts  at  limiting  the  capacity  of  free  aliena- 
tion. To  this  end  entails  were  long  ago  abolished,  and  in 
most  or  all  of  the  States  the  power  of  owners  to  create  suc- 
cessive remainders  has  been  greatly  curtailed. 

§  870.  A  reversion  is  the  estate  left  in  a  grantor,  to  com- 
mence in  possession  at  the  determination  of  some  particular 
estate  granted  by  him.  Thus  if  the  owner  in  fee  were  to 
convey  away  a  life  estate,  the  reversion  would  still  be  left 
in  him,  and  he  or  his  heirs  would  come  into  possession  at 
the  expiration  of  that  life  estate.  Remainders  must  always 
be  given  to  some  person  other  than  the  grantor  ;  reversions 
must  always  belong  to  the  grantor  or  his  heirs. 

§  8Y1.  4.  Of  the  number  mid  connection  of  owners. — 
Rights  of  property  in  any  particular  lands  may  be  enjoyed 
by  a  single  individual,  or  by  two  or  more  in  union.  In  the 
first  case  the  ownership  is  said  to  be  in  severalty,  and  is  the 
ordinary  method  of  holding  lands.  When  the  ownership  is 
distributed  among  two  or  more  proprietors,  it  may  be  either 
joint,  or  in  common.  According  to  the  rules  of  the  com- 
mon law,  when  any  estate  is  conveyed  or  devised  to  several 
persons,  they  take  it  as  joint  owners,  and  as  such  their  in- 
terest, their  title,  and  their  possession  are  united.  Each  has 
the  entire  possession  as  well  of  every  part  as  of  the  whole. 
The  peculiarity  of  tliis  ownership  is  that  feature  called  the 
right  of  survivorship.  Upon  the  death  of  one  joint  owner, 
his  interest  goes  to  the  survivors,  and  so  on  to  the  last  sur- 
vivor, who  succeeds  to  the  whole  estate.  No  joint  owner  can 
therefore  devise  his  share  of  the  lands  by  will.     This  rule  is 


512  OF   PROPERTY. 

SO  antagonistic  to  the  policy  of  our  legislation,  that  joint 
ownership  has  been  virtually  abolished  throughout  the- 
United  States. 

§  872.  Ownership  in  common  beare  some  resemblance  to 
that  last  described,  but  has  none  of  its  unjust  incidents. 
It  may  be  created  by  will  or  by  deed,  but  usually  arises  in 
this  country  from  a  descent  of  lands  to  several  heirs  of  the 
same  intestate.  The  possession  of  owners  in  common  is 
united,  but  each  is  the  proprietor  of  a  distinct  and  separate 
share  of  the  land,  although  undivided  from  that  of  the 
others.  His  interest  may  therefore  be  transferred  by  con- 
veyance, by  will,  by  descent,  or  may  be  taken  and  sold  on 
execution,  and  the  person  who  succeeds  to  his  rights  of  prop- 
perty,  will  also  succeed  to  the  united  possession.  Any 
owner  in  common  may  compel  his  fellow-owners  to  unite 
with  him  in  making  a  division  and  allotment  of  their  respec- 
tive shares,  which  is  technically  called  a  partition.  The 
object  of  a  partition  is  to  end  the  common  proprietorship, 
to  mark  out  and  allot  the  particular  parcel  belonging  to  each, 
and  to  render  him,  as  to  such  parcel,  a  sole  owner. 


CHAPTER  III. 

OF      CONTRACTS. 

§  873.  The  portion  of  our  municipal  law,  which,  more 
than  any  other,  controls  all  the  business,  and  all  the  mu- 
tual relations  of  mankind,  and  constantly  makes  itself  felt 
in  the  daily  affairs  of  life,  is  that  which  refers  to  contracts. 
By  far  the  greater  part  of  the  transactions  in  which  society 
is  engaged,  consists  in  the  entering  into  and  performing  of 
contracts  of  some  description.  "  If  these  were  all  carried  into 
full  effect,  the  law  would  have  no  office  but  that  of  instructor 
or  adviser.  It  is  because  they  are  not  all  carried  into  effect, 
and  it  is  that  they  may  be  carried  into  effect,  that  the  law  ex- 
ercises a  compulsive  power.  Hence  is  the  necessity  of  law  ; 
and  the  well-being  of  society  depends  upon,  and  may  be  meas- 
ured by,  the  degree  in  which  the  law  construes  and  interprets 
all  contracts  wisely,  eliminating  fi'om  them  whatever  is  of 
fraud,  or  error,  or  otherwise  wrongful ;  and  carries  them 
out  into  their  full  and  proper  effect  and  execution.  These 
then  are  the  results  which  the  law  seeks  ;  and  it  seeks  these 
results  by  means  of  principles  ;  that  is,  by  means  of  truths, 
ascertained,  defined,  and  so  expi-essed  as  to  be  practical  and 
operative.  These  principles,  in  their  most  general  form, 
may  be  said  to  be,  first,  those  rules  of  constniction  and  inter- 
pretation which  have  for  their  object  to  find  in  a  contract 
a  meaning  which  is  honest,  without  doing  violence  to  the 
expressions  of  the  parties,  or  making  a  new  contract  for 
33 


614  OF   CONTRACTS. 

them  ;  and,  secondlj,  those  which  discliarge  from  a  contract 
whatever  would  hring  upon  it  the  fatal  taint  of  fraud,  or  is 
founded  upon  error  or  accident,  or  would  work  an  injury. 
And  if  these  elements  of  wrong  are  so  far  vital  to  any  con- 
tract, that,  where  they  are  removed,  it  perishes,  then  the 
law  annuls  or  refuses  to  enforce  that  contract,  unless  a  still 
greater  mischief  would  be  done  thereby."  (Parsons  on  Con- 
tracts ;  vol.  1,  p.  4.) 

§  874.'^  A  contract  is  an  agreement,  between  two  or  more^ 
parties,  upon  a  sujfficient  consideration,  to  do  or  not  to  do 
some  particular  things  -^hey  are  divided  in  respect  to 
their  form,  into  specialties,  and  simple  or  parol  contracts./ 
Specialties  are  those  which  are  written  and  attested,  by  a 
seal.  Simple,  or  parol  agreements  are  all  others,  and  may 
be  either  written  or  oral. ;  The  element  of  distinction  is 
merely  the  presence  or  the  absence  of  a  seal.  fWith  respect 
to  the  nature  of  the  agreement,  contracts  are  said  to  be  ex- 
press or  implied.  The  former  are  those  in  which  the  parties 
have  both  definitely  settled  the  terms  of  their  compact 
either  in  waiting  or  orally.  The  latter  are  those  which  the 
law  raises  or  infers  from  the  acts  of  the  parties  by  reason  of 
some  value  or  service  rendered,  and  because  justice  requires 
it.  This  species  of  contracts  is  simply  the  method  which 
the  law  adopts  to  enforce  many  duties,  and  depends  upon 
the  very  general  principle,  that  whatever  it  is  certain  a  man 
ought  to  do,  the  law  assumes  that  he  has  promised  to  do. 
The  Koman  law  used  the  same  division  ;  it  spoke  of  obliga- 
tions ai'ising  from  express  contracts,  and  of  those  arising 
from  implied  contracts.  Tliis  classification,  although  simi- 
lar in  name,  was  not  alike  in  meaning.  The  Roman  jurists 
included  in  their  express  contracts,  all  those  cases  where 
an  agreement  was  either  actually  made  or  presumptively 
inferred  ;  in  other  words,  both  our  express  and  implied 
contracts.  Among  their  obligations  arising  from  implied 
contnicts  (quasi  ex  contractu)  were  embraced  many  which 
wo  do  not  consider  as  springing  from  any  kind  of  assent 


PARTIES   TO   CONTRACTS. 


515 


or  agreement.  As  remarked  by  a  late  very  acute  English 
writer,  this  division  was  intended  by  the  Roman  jurists 
to  include  all  those  obligations  which  could  not  properly 
be  referred  for  their  basis  to  contracts,  or  to  wrongs.  It 
was  a  classification  of  convenience,  and  not  one  founded 
upon  any  similarity  of  relations.  Our  law  finds  a  duty  rest- 
ing upon  a  person,  assumes  him  to  have  promised  to  per- 
form that  duty,  and  treats  him  as  though  he  had  actually 
promised.  To  illustrate ;  if  one  person  labors  for  another 
at  his  request,  without  any  agreement  as  to  wages,  the  law 
declares  that  the  employer,  by  virtue  of  his  request,  has 
entered  into  an  implied  contract  to  pay  whatever  wages 
are  right.  It  will  be  readily  seen  that  this  class  is  by 
far  the  most  numerous  of  any  in  the  actual  transactions  of 
life. 

§  875.  From  the  definition,  it  appears  that  there  are  in 
general  four  essential  elements  of  every  valid  contract ; 
viz.,  parties  ;  an  assent  or  agreement  express  or  implied  ;  a 
consideration  ;  and  the  subject  matter,  or  that  which  is  to  be 
done  or  not  to  be  done.  I  will  briefly  treat  of  these  elemeilts 
in  order,  giving  the  more  general  principles  of  the  law  in 
relation  thereto,  and  under  the  last,  describing  some  of  the 
more  important  species  of  mercantile  contracts  in  common 
use. 

§  876.  PayiAss. — With  certain  exceptions,  all  persons  are 
permitted  by  the  law  to  become  parties  to  contracts  and  to 
bind  themselves  by  their  agreements.  These  exceptions 
include  infants,  married  women,  and  those  whose  minds  are 
unsound  by  reason  of  mental  disease,  or  whose  judgments 
are  temporarily  overthrown  by  reason  of  intoxication.  In- 
dividuals afiected  with  either  of  these  disqualifications  may 
indeed  go  through  the  form  of  an  agreement,  but  while  the 
disability  lasts,  and  without  a  ratification  after  it  is  removed, 
their  contracts  are  void.  I  have  already  spoken,  in  the  first 
chapter  of  this  part,  of  the  special  power  of  infants  and 
married  women.     Lunatics,  idiots,  and  persons  intoxicated. 


516  OF   CONTR^lCTS. 

are  incapacitated  from  contracting,  because  the  judgment  to 
decide  and  the  will  to  execute  correctly  are  wanting  to 
them.  The  rights  and  liabilities  of  parties  cannot  be  fully 
stated  until  I  shall  speak  of  the  subject  matter  of  contracts, 
for  these  rights  and  liabilities  in  each  case  must  depend 
upon  the  very  thing  which  they  have  undertaken  to  per- 
form. 

§  877.  There  are  some  liabilities,  however,  which,  de- 
pending partly  upon  the  form  and  partly  upon  the  substance, 
are  common  to  all  species  of  contracts.  "When  the  parties 
to  a  contract  are  so  related  to  each  other,  that  an  obliga- 
tion on  the  one  side  is  undertaken  by  two  or  more  individ- 
uals, or  a  right  on  the  other  is  given  to  two  or  more  individ- 
uals, that  obligation,  or  that  right,  may  either  be  joint,  or 
several,  or  joint  and  several.  The  liability  is  said  to  be 
joint,  when  it  must  be  enforced  against  all  the  promisers 
together ;  it  is  several,  when  it  must  be  enforced  against 
each  one  separately  ;  it  is  joint  and  several  when  it  may  be 
enforced  either  against  all  together,  or  against  any  one 
singly,  at  the  election  of  the  other  contracting  party.  The 
right  is  joint,  when  all  the  persons  holding  it  must  unite  in 
its  enforcement ,  several,  when  each  one  must  enforce  it  by 
himself;  joint  and  several,  when  either  of  these  courses  may 
be  pursued.  The  ancient  common  law,  in  its  construction 
of  contracts,  pronounced  many  liabilities  to  be  joint,  which 
would  now  be  considered  joint  and  several.  The  general 
rule  is  that  when  a  right  is  conferred  upon  two  or  more,  or 
an  obligation  undertaken  by  them,  it  is  joint.  Modifying 
this  very  general  rule,  is  another,  that  the  nature  of  the 
obligation  or  right  is  to  be  inferred  from  the  terms  of  the 
^-ontract  if  it  be  express,  and  from  the  intention  of  the  par- 
ties, if  it  be  implied.  The  interests  of  trade  and  commerce 
demand  that  in  mercantile  contracts  the  liability  of  the 
parties  should  generally  be  joint  and  several,  and  this  is  so 
declared  by  statutes  in  many  instances,  without  reference  to 
the  express  terms  of  the  agreement. 


THE   CONSIDERATION.  517 

§  878.  Assent. — The  assent  or  agreement  of  the  parties 
is  another  essential  element  of  every  contract.  This  must 
be  mutual,  complete,  directed  to  the  same  subject  matter, 
and  of  such  a  nature  as  to  be  obhgatorj.  It  is  then  a  men- 
tal operation,  and  may  be  expressed  by  spoken  words,  by 
writing,  and  even  by  the  acts  of  the  parties.  There  must 
be  in  substance  a  request  on  the  one  side,  and  an  assent  on 
the  other,  so  that  the  old  Roman  form  of  stipulation  was  in 
fact  the  very  essence  of  every  possible  contract,  tersely  set 
forth  in  language.  The  agreement  must  also  be  entirely 
voluntary.  K  it  be  extorted  by  such  violence,  or  restraints, 
or  threats,  that  the  will  of  the  promiser  is  unduly  con- 
strained, which  in  legal  language  is  called  duress,  the  con- 
tract is  entirely  void. 

§  879.  The  Consideration. — It  is  a  very  ancient  prin- 
ciple of  our  law  that  a  consideration  is  an  essential  element 
of  every  contract.  Every  unexecuted  agreement  or  promise 
without  a  consideration  is  absolutely  void.  In  all  contracts 
not  under  seal  whether  written  or  oral,  this  necessary  feature 
must  actually  exist ;  in  those  under  seal,  on  account  of  the 
peculiar  solemnity  and  deliberation  of  their  execution,  the 
consideration  will  be  presumed,  and  need  not  be  afi&rmatively 
shown  in  order  to  establish  the  validity  of  the  igreement, 
and  the  liability  of  the  promiser.  To  this  almost  universal 
rule  there  is,  however,  an  important  exception,  introduced 
in  comparatively  modern  times  to  facilitate  the  operations 
of  trade  and  commerce.  This  exception  includes  bills  of 
exchange  and  negotiable  promissory  notes.  As  between  the 
original  parties  thereto,  these  instruments,  in  common  with 
all  other  valid  agreements,  require  the  presence  of  a  consid- 
eration ;  but  when  they  have  been  transferred  before  due,  in 
the  course  of  business,  for  a  fair  value,  and  without  any 
notice  of  the  defect,  and  have  thus  come  into  possession  of  a 
holder  in  good  faith,  they  may  be  enforced  by  him,  even 
though  they  lack  this  otherwise  indispensable  element. 

§  880.    The   Roman  law  classified  the   considerations 


518  OF  CONTRACTS. 

which  might  support  a  contract,  into  the  four  exliauBtive 
formalas  which  have  already  been  quoted,  do  ut  des,  do  ut 
facias,  facio  ut  des,  and  facio  ut  facials.  Oui-  own  jurists 
do  not  attempt  to  arrange  the  several  species  of  contracts 
under  these  four  heads,  but  give  a  more  general  definition 
of  the  term  consideration,  which  includes  them  all.  A  con 
sideration  is  then  something  which  is  a  benefit  to  the  per- 
son promising,  or  an  injury  or  trouble  to  him  to  whom  the 
promise  is  made.  When  any  valid  contract  is  made,  one  or 
both  of  these  two  facts,  the  benefit  to  the  promiser,  or  the 
detriment  to  the  promisee,  will  be  invariably  found  present. 
In  this  more  general  description,  the  division  is  also  made 
of  good,  and  valuable  considerations.  The  former  consist 
in  blood  relationshij),  or  natural  love  and  afi'ection,  which 
are  considered  as  a  benefit  to  the  promiser  ;  the  latter  con- 
sist in  money,  services,  and  the  like,  which  are  esteemed  to 
be  a  pecuniary  recompense,  or  equivalent  thereto,  and  in 
marriage.  That  class  of  considerations  technically  called 
good,  form  no  part  of  the  contracts  used  in  the  ordinary 
transactions  and  business  of  life,  and  our  attention  will 
therefore  be  directed  entirely  to  the  other  species. 

§  881.  While  the  law  thus  demands  that  in  these  contracts 
there  should  be  a  valuable  consideration,  it  does  not  require 
that  it  should  be  adequate  ;  it  does  not  stop  to  compare  the 
extent  of  the  advantage  gained  with  that  of  the  promise 
given,  in  determining  the  general  validity  of  agreements, 
but  looks  only  to  see  that  some  benefit  accrues  to  one  party, 
or  some  detriment  to  the  other.  Inadequacy  may,  how- 
ever, often  be  a  very  strong  indication  of  fraud  in  the  execu- 
tion of  contracts,  and  in  order  to  test  the  good  faith  of  parties 
in  tlieir  transactions,  the  amount  of  the  consideration  is  often 
carefully  inquired  into. 

§  882,  I  will  now  state  some  of  those  instances  of  advan- 
tage to  the  promiser,  or  of  injury  to  the  promisee,  which  are 
frequent  considerations  of  contracts.  Of  course  the  transfer 
of  lands,  money  cr  any  other  chattel,  things  in  action,  or 


CLASSES   OF   CONSIDERATIONS.  519 

nnj  kind  of  thing  which  may  be  the  subject  of  property, 
comes  within  this  description  and  will  support  a  contract. 
It  is  in  virtue  of  this  species  of  consideration,  tliat  contracts 
are  said  to  be  one  method  of  acquiring  property  in  things 
personal.  So  also  work  and  labor  or  other  services,  done  at 
the  request  of  the  person  promising,  are  a  sufficient  and  very 
common  form  of  consideration  ;  and  this  request  need  not 
be  expressed  in  words,  but  will  be  implied  from  the  acts  of 
the  party,  such  as  the  permitting  the  labor  to  be  done,  or 
the  accepting  and  enjoying  the  benefit  which  it  confers. 
But  an  actual  transfer  of  property  or  performance  of  services 
is  not  necessary,  for  the  mere  promise  made  by  one  of  the 
parties  to  a  contract,  is  a  sufficient  consideration  to  sustain 
a  corresponding  promise  made  by  the  other.  In  this  case 
both  are  benefited  by  the  right  which  they  obtain,  and 
both  are  legally  injured  by  the  obligation  which  they  as- 
sume. A  very  large  portion  of  the  ordinary  contracts  of 
business  are  of  this  form.  Trust  and  confidence  reposed  by 
one  person  in  another  form  a  valuable  consideration  for  the 
latter's  agreement  based  upon  such  confidence.  The  preven- 
tion of  litigation,  and  the  refraining  or  agreeing  to  refrain 
for  a  time  from  the  prosecution  of  valid  claims  by  legal  pro- 
ceedings, are  sufficient  considerations  for  the  promises  of 
those  who  are  benefited  thereby,  A  careful  scrutiny  of 
those  contracts  which  are  employed  in  the  usual  transactions 
of  life,  would  show  that  almost  all  depend  for  their  validity 
upon  some  one  of  these  enumerated  species  of  consideration. 
Of  course  the  greater  number  are  included  in  the  cases 
where  a  transfer  of  property  is  made,  where  services  are 
rendered,  or  where  a  promise  is  given  for  a  promise.  When 
the  consideration  is  illegal  or  impossible,  the  contract  is 
void  ;  when  it  entirely  fails  before  the  agreement  is  executed, 
the  obligation  to  perform  is  no  longer  binding. 

§  883.  In  respect  to  time,  considerations  may  be  present, 
when  the  promise  and  the  benefit  coiiferred  or  injury  sus- 
tained are  simultaneous  ;  they  may  be  future,  or  executory, 


520  OF   CONTRACTS. 

where  the  benefit  is  to  be  conferred  hereafter,  and  the 
promise  of  it  is  given  now.  to  support  the  promise  of  the 
other  j)arty  in  return  ;  or  they  may  be  wholly  past,  or 
executed.  In  general  a  past  or  executed  consideration  is 
not  sufficient  to  render  a  subsequent  promise  valid,  unless 
there  was  a  request  from  the  promisor,  made  prior  to  the 
act  which  constitutes  the  consideration.  In  the  absence  of 
such  a  request  exi:)ress  or  implied,  the  law  does  not  consider 
the  agreement  to  have  been  founded  upon  the  past  benefit, 
and  regards  it  as  entirely  without  any  consideration.  This 
request  will,  however,  be  often  presumed,  in  order  to  pre- 
vent injustice. 

§  884.  The  Subject  Matter. — The  subject  matter  of  a 
contract  is  the  thing  agreed  to  be  done  or  not  to  be  done. 
Its  nature  in  any  particular  case  determines  substantially 
the  rights  and  liabilities  of  the  parties.  It  is  impossible  to 
describe  these  rights  and  obligations  which  may  arise  in 
every  case,  for  contracts  assume  as  many  forms,  relate  to  as 
many  subjects,  and  contain  as  many  provisions,  as  the  con- 
stantly varying  wants  of  society  and  business  demand. 
There  are  some  mercantile  contracts,  however,  which  are  so 
important,  are  in  such  common  use,  through  whose  means 
the  most  of  the  world's  business  is  transacted,  that  some 
description  of  them  and  of  the  rights  and  liabilities  of  the 
parties  thereto,  is  necessary  even  to  our  elementary  sketch 
of  this  subject.  Among  these  are  Sale,  Bailment,  Agency, 
Partnership,  Bills  of  Exchange  and  Promissory  Notes. 

§  885.  Of  Sales. — A  sale  is  a  contract  whereby  property 
in  a  chattel  is  transferred  from  one  person  to  another  in 
consideration  of  money  or  of  a  promise  of  money  given  in 
return.  For  a  complete  and  effectual  sale  there  must  be 
parties,  the  thing  sold,  the  assent,  and  the  consideration. 
The  rules  as  to  parties  have  been  already  stated.  The 
thing  sold  must  have  an  actual  existence,  although  it  need 
not  be  in  the  possession  of  the  seller.  The  agreement  or 
aRsent  must  be  complete  and  mutual,  and  may  be  oral,  or 


DELIVERY.  521 

embodied  in  formal  writings,  or  contained  in  letters.  The 
price  must  be  fixed  and  certain,  or  capable  of  being  made 
certain  without  further  negotiation  between  the  parties. 
The  consideration  may  be  either  money  paid  at  the  time 
when  the  sale  is  consummated,  or  a  promise  to  pay  at  some 
future  time.  AVhen  by  a  provision  of  the  contract,  express 
or  implied,  the  consideration  is  of  the  latter  form,  the  sale  is 
on  credit.  When  the  sale  is  completed  the  property  in  the 
thing  passes  to  the  purchaser  ;  but  this  may  be  a  qualified 
property  only,  for  the  right  of  possession  may  still  remain 
with  the  seller.  If  the  sale  is  for  cash,  the  seller  has  a  lien 
on  the  thing  sold,  and  the  right  to  retain  it,  until  the  money 
is  paid ;  and  if  the  article  should  be  accidentally  destroyed 
while  in  this  condition,  the  loss  would  fall  on  the  purchaser, 
and  he  would  be  liable  for  the  price.  But  if  the  sale  be  on 
credit,  the  purchaser  is  entitled  to  immediate  possession 
without  payment,  the  consideration  of  the  contract  being 
then  a  mere  promise.  A  sale  is  not  complete  so  long  as 
anything  remains  to  be  done  to  the  article  to  put  it  into  a 
condition  to  sell,  or  to  identify  it,  or  to  separate  it  from 
other  things. 

§  886.  As  between  the  parties  themselves,  the  contract 
of  sale  is  valid,  in  the  absence  of  any  statutory  provisions, 
without  a  delivery  of  the  chattel  to  the  purchaser ;  but  in 
order  that  the  latter  may  acquire  a  perfect  title  as  against 
other  persons,  who  have  had  no  notice  of  the  transaction, 
there  must  be  an  actual  transfer  of  possession.  A  retention 
by  the  seller  of  the  goods  which  he  has  sold,  has  always 
been  considered  as  afibrding  a  strong  presumption  that  the 
transaction  was  fraudulent  as  against  his  creditors  or  subse- 
quent purchasers  from  him,  and  the  presumption  was  once 
absolute,  and  could  be  removed  by  no  explanation  of  the 
circumstances.  In  modern  times  tlie  severity  of  this  rule 
has  been  relaxed,  so  that,  while  non-delivery  still  throws  a 
marked  suspicion  of  fraud  over  the  sale,  it  may  be  explain- 
ed, and  its  evil  effects  removed.     The  deliverv  in  all  cases 


522  OF   CONTKACTS. 

need  not  be  of  the  entire  bulk  of  the  article  sold,  but  may 
be  suited  to  its  nature  and  situation.  There  must,  however, 
be  such  acts  as  show  a  design  on  the  part  of  the  seller  to  di 
vest  himself  of  all  control  over  the  thing,  and  transfer  it  to 
the  buyer.  The  statute  of  frauds,  already  described  in  a 
former  part  of  this  work,  adds  some  further  essentials  to  the 
validity  of  the  contract  of  sale  between  the  parties,  by  re- 
quiring that  when  the  article  exceeds  in  value  a  certain 
fixed  sum  (generally  $50),  there  must  be  a  memorandum  in 
M'riting,  signed  by  the  party  to  be  charged,  or  a  delivery  or 
part  delivery,  or  payment  of  a  sum  of  money  as  earnest. 

§  887.  When  a  person  sells  a  thing  which  is  in  his  pos- 
session, he  is  said  to  warrant  his  title  thereto  ;  that  is,  the 
law  adds  to  his  express  stipulations  the  additional  agree- 
ment that  he  is  the  true  owner,  and  has  the  right  and 
power  to  sell,  and  he  is  liable  to  the  purchaser  if  the  con- 
trary be  true.  But  in  regard  to  the  quality  of  the  chattel, 
our  law  has  adopted  a  different  rule.  The  Roman  law,  in 
respect  to  sales,  contained  the  maxim  caveat  venditor — let 
the  seller  beware ;  and  thus  threw  upon  him  the  responsi- 
bility for  such  a  quality  of  the  goods  as  corresponded  to  the 
price.  Our  law  says  caveat  emptor — let  the  buyer  take  care 
of  his  own  interests  ;  and  thus  throws  upon  him  the  respon- 
sibility of  ascertaining  the  nature  of  the  article  purchased. 
In  other  words,  no  implied  agreement  in  respect  to  quality 
is  added  to  the  express  stipulations  of  the  seller.  He  may, 
however,  directly  assume  such  a  responsibility  by  incorpo- 
rating a  provision  in'  his  contract  rendering  him  liable  for 
defects  in  tlie  thing  sold.  To  this  rule  there  are  some  ex- 
ceptions, springing  from  the  very  nature  of  the  case,  fi'om 
the  inability  of  the  purchaser  in  some  instances  to  make 
tliat  examination  which  the  rule  itself  assumes.  "When  a 
sale  has  been  accompanied  by  a  waiTanty  of  quality  either 
express  or  implied,  and  the  articles  prove  to  be  defective, 
the  jjurcliaser  may  either  retain  tliem  and  sue  the  seller  for 
such  damages  as  he  has  sustained  ;  or  }  e  may,  withm  a  rea- 


BAILMENT.  523 

sonable  time  after  the  defect  is  discovered,  return  them,  and 
sue  to  recover  back  the  price  paid,  or  defend  an  action 
brought  against  him  for  the  price,  if  he  has  not  paid. 
In  the  States  of  South  Carolina  and  Louisiana  the  prin- 
ciple of  tlie  Roman  law  in  regard  to  warranty  has  been 
adopted. 

§  888.  But  the  law  goes  farther  than  those  stipulations 
in  reference  to  the  title  or  quality  of  the  things  sold,  which 
are  termed  warranties,  and  prescribes  a  certain  amount  of 
good  faith  and  honest  dealing  on  the  part  of  the  seller,  in 
Order  that  the  contract  may  be  free  from  fraud,  and  there- 
fore binding  upon  the  buyer.  Strict  morals  would  perhaps 
require  that  the  seller  should  disclose  all  defects  within  his 
knowledge  ;  but  the  municipal  law  falls  short  of  this  perfec- 
tion. It  does  not  stamp  the  mere  silence  of  the  seller  with 
the  character  of  fraud,  for  this  would  be  only  to  introduce 
the  doctrine  of  implied  warranties  under  another  name ; 
nor  does  it  forbid  such  commendation  from  him  of  the 
goods  as  may  be  extravagant,  for  this  is  only  a  matter  of 
opinion  ;  but  if  he  use  any  false  representations  as  to  facts, 
or  by  any  acts,  or  words,  leads  the  buyer  astray,  the  sale 
procured  by  such  dishonesty  is  fraudulent  and  may  be  re- 
scinded by  the  injured  party. 

§  889.  Of  Bailments. — Bailment  is  a  general  term  in- 
cluding a  variety  of  special  forms  of  contract,  all  of  which, 
however,  are  based  upon  the  same  essential  fact,  which  is 
the  delivery  of  goods  in  trust,  upon  an  agreement,  expi»ess 
or  imphed,  that  the  trust  shall  be  duly  executed,  and  the 
goods  returned  by  the  bailee,  as  soon  as  the  pui*poses  of  the 
bailment  are  accomplished.  The  person  delivering  is  called 
the  bailor,  and  the  one  receiving,  the  bailee.  The  name  is 
derived  from  the  French  verb  Ijailler,  to  deliver.  In  every 
species  of  the  contract,  the  bailee,  as  he  assumes  possession 
of  goods  not  his  own,  is  morally  and  legally  bound  to  use 
them  with  care,  and  may  be  guilty  of  negligence  toward 
them.     Most  of  the  rules  of  law  in  regard  to  this  subject 


624  OF  CONTEACTS. 

are  intended  to  fix  the  degree  of  this  care  which  devolves 
upon  the  bailee,  and  the  extent  of  the  negligence  which 
would  render  him  liable,  in  all  the  possible  cases  which  may 
arise  in  business.  These  niles  are  numerous  and  minute, 
and  I  can  only  give  the  very  general  principles  from  which 
they  are  all  drawn. 

§  890.  Legal  text  writers  and  courts  have  divided  this 
necessary  care  into  three  grades :  first,  slight  care,  or  that 
which  absent  and  inattentive  men  apply  to  their  own  afi'airs ; 
secondly,  ordinary  care,  or  such  as  every  person  of  common 
prudence  takes  of  his  own  concerns ;  thirdly,  great  care,  or 
such  as  a  man  remarkably  exact  gives  to  the  management 
of  his  own  property.  The  want  of  this  care  measures  the 
degrees  of  negligence.  Gross  negligence  is  the  absence  of 
slight  care ;  ordinary  negligence,  of  ordinary  care ;  slight 
negligence,  of  great  care.  These  divisions  appear  plausible, 
but  they  have  been  pronounced  by  many  late  writers  and 
judges  of  great  ability  to  be  entirely  artificial  and  utterly 
contusing,  and  there  seems  to  be  an  evident  tendency  to 
abandon  them.  The  degree  of  care  in  any  particular  case, 
must  depend  upon  the  nature  of  the  thing  bailed,  the  pur- 
poses of  the  bailment,  and  the  interest  of  the  bailee  in  the 
article.  In  respect  to  the  latter  two  of  these  elements,  an 
obvious  classification  of  the  several  species  of  bailment  has 
been  made  ;  but  in  respect  to  the  first  and  most  important, 
no  classification  is  possible.  The  nature  of  the  articles 
which  are  the  objects  of  the  contract  must  be  so  varying, 
that  what  would  be  great  care  in  respect  to  one  thing,  would 
be  gross  negligence  in  respect  to  another  which  might  be 
subject  to  the  same  species  of  bailment. 

§  891.  The  classes  alluded  to  are  three.  In  the  first,  the 
bailment  is  entirely  for  the  l)enefit  of  the  bailor,  aud  slight 
care  only  is  demanded  from  the  bailee,  and  he  is  responsible 
f<jr  gross  negligence  alone.  Included  in  this  division  are 
deposits  of  goods  to  be  kept  for  the  bailor  without  recom- 
pense, and  to  be  returned  upon  demand  ;  and  mandates,  in 


PLEDGE — HIRING.  525 

vrhich  goods  are  taken  bj  the  bailee,  who  undertakes  to  do 
some  act  or  service  in  respect  to  them  gratuitous!}',  in  addi- 
tion to  their  mere  custody.  In  the  second  class,  the  bail- 
ment is  for  the  sole  benefit  of  tiie  bailee,  wlio  is  bound  to 
use  the  greatest  care,  and  is  responsible  for  slight  negli- 
gence. The  only  example  of  this  division  is  the  gratuitous 
loan  of  an  article  for  a  certain  time,  to  be  used  but  not  con- 
sumed, and  then  returned.  In  the  third  class,  the  benefit  is 
mutual,  and  the  bailee  is  bound  to  use  ordinary  care,  and 
held  responsible  for  ordinary  negligence.  The  species  em- 
braced in  it  are  pigjius,  or  pledge,  and  locatio,  or  the  hiring 
of  chattels.  These  latter  contracts  are  very  important,  and 
merit  a  more  particular  description. 

§  892.  A  pledge  is  a  delivery  of  things  personal  by  a 
debtor  to  his  creditor,  to  be  held  by  him  as  security  for  the 
debt.  The  bailee  has  a  qualified  property  in  the  thing,  and 
may  retain  it  until  his  claim  is  satisfied.  He  may  not  in 
general  use  it,  unless  its  weU-being  requires  it,  but  any 
profits  acquired  in  this  manner  must  be  accounted  for.  He 
is  bound  to  bestow  ordinary  care  upon  the  pledge,  but  the 
degree  of  this  care  will  depend  entirely  upon  the  nature  of 
the  article.  The  creditor  cannot,  before  the  debt  is  due,  sell 
the  pledge  ;  but  after  a  failure  of  payment  at  the  appointed 
time,  he  may  enforce  the  security,  and  make  it  effectual,  in 
either  of  two  methods.  He  may  foreclose  the  debtor's  rights 
by  an  action  ;  or,  after  a  reasonable  notice  to  the  debtor,  he 
may  sell  the  article  himself,  and  appropriate  the  proceeds 
in  satisfaction  of  his  claim.  The  most  frequent  instances  of 
this  contract  are  the  ordinary  pawning  to  licensed  pawnbro- 
kers, and  the  pledging  of  stocks,  or  other  tilings  in  action,  as 
security  for  loans  of  money. 

§  893.  Of  locatio,  or  hiring,  there  are  several  different 
forms,  the  first  of  which  is  termed  locatio  rei,  or  letting  to 
hire,  where  the  hirer,  for  a  compensation,  acquires  the  tem- 
porary use  of  the  thing.  The  article  can  only  be  employed 
for  the  purposes  designated  by  the  agreement,  and  must  be 


526  OF   COXTRAOTa. 

returned  at  tlie  stipulated  time,  or  within  a  reasonable  time, 
if  none  was  agreed  upon. 

§  S94.  Locatio  qperis  faciendi  is  where  work  and  labor, 
care  and  pains,  are  to  be  bestowed  upon  the  thing  delivered, 
for  a  compensation,  and  includes  the  cases  of  mechanics  em- 
jjloved  to  manufacture  or  repair  the  goods  bailed  to  them  ; 
of  warehousemen,  who  undertake  the  custody  of  goods ;  and 
of  innkeepers,  who  receive  the  goods  of  their  guests.  The 
liability  of  mechanics  and  warehousemen  is  that  already 
stated.  The  case  of  innkeepers  is  peculiar,  and,  together 
with  that  of  common  carriers,  depends  upon  reasons  sug- 
gested by  public  policy.  The  keeper  of  an  inn  is  respon- 
sible not  only  for  losses  occasioned  by  his  own  negligence  or 
that  of  his  servants,  but  for  those  which  no  amount  of  fore- 
sight, or  prudence,  could  have  averted.  He  is  held  answer- 
able for  all  loss,  damage,  or  destruction  of  his  guests'  goods, 
except  such  as  is  caused  by  the  act  of  God,  or  by  public 
enemies,  or  by  the  fault  or  neglect  of  the  owner.  An  act 
of  God  is  such  a  cause  as  operates  without  any  aid  or  inter- 
ference from  man,  as  a  storm,  or  a  stroke  of  lightning. 
This  severe  burden  of  responsibility  has  been  mitigated  by 
recent  legislation  in  some  of  the  States. 

§  895.  Another  form  of  the  contract  of  hiring  is  that  in 
which  the  bailee  is  to  caiTy  the  goods  for  the  bailor,  from 
one  place  to  another.  Carriers  are  either  private  or  com- 
mon. The  liabilities  of  a  private  can'ier  are  those  which 
generally  belong  to  bailees  of  this  class.  Common  carriers 
are  those  who  undertake  for  hire  to  transport  the  goods  of 
Buch  aa  choose  to  em])loy  them.  The  owners  of  all  the  ve- 
hicles of  transportation  by  land  or  by  water,  which  offer 
their  services  to  the  public,  fall  under  this  definition.  The 
liability  of  the  common  carrier  begins  with  the  delivery  of 
the  goods  to  him,  and  continues  until  they  are  delivered  by 
him.  The  same  degree  of  responsibility  rests  upon  him  in 
reference  to  loss  or  damage  as  belongs  to  the  innkeeper , 
yet  he  may  limit  his  liability  by  a  direct  agreement  with  his 


AGENCY.  52T 

employer.  Common  carriers  of  goods  and  of  passengers 
stand  upon  a  somewhat  dilFerent  footing.  The  liability  of 
the  former  does  not  depend  upon  the  fact  of  negligence ; 
while  that  of  the  latter  is  based  upon  this  essential  element, 
but  from  the  peculiar  nature  of  his  business  there  can  be  no 
grades  of  negligence  in  his  case ;  the  slightest  degree  will 
suflSce  to  fix  a  responsibility  upon  him. 

§  896.  Of  Agency. — The  contract  of  agency  is  that  by 
which  one  of  the  parties,  the  principal,  either  directly  or  by 
implication,  confides  to  the  other,  the  agent,  the  manage- 
ment of  some  business  to  be  transacted  in  his  name  or  on 
his  account,  and  by  which  the  latter  assumes  to  do  the  busi- 
ness, and  to  render  an  account  of  it.  It  is  a  contract  of 
most  general  use,  being  indispensable,  not  only  to  the  opera- 
tions of  business,  but  to  the  daily  pursuits  of  private  and 
domestic  life.  As  between  the  parties  the  contract  is  simple ; 
the  engagement  of  the  principal  is  to  pay  some  compensa 
tion,  in  consideration  of  the  labor  and  services  of  the  other ; 
the  engagement  of  the  agent  is  to  perform  those  services. 

§  897.  But  the  most  important  rules  of  law  are  those 
which  protect  the  rights  of  third  persons  dealing  with  an 
agent,  and  determine  the  question  whether  the  latter  or  his 
principal  are  bound  by  his  acts.  There  are  two  simple  and 
equitable  principles  from  which  all  these  rules  ^re  drawn, 
and  which  are  so  evidently  just,  that  their  application  is 
universal.  The  first  is  that  the  agent  is  the  instrument  of 
his  principal,  and  his  acts  done  actually  or  constructively 
by  the  latter's  dii-ection  or  assent,  are  done  by  the  principal 
himself.  This  doctrine  the  law  has  compressed  into  the 
maxim  quifacit  jper  cdium  facit  per  se.  The  second  prin- 
ciple is,  that  not  only  is  a  principal  bound  by  the  acts  of 
o;ie  whom  he  has  directly  authorized  to  be  his  agent,  but 
also  of  one  whom,  by  his  own  conduct,  he  has  induced  others 
to  believe  was  so  authorized,  when  they  have  acted  upon 
such  belief.  Having  been  the  cause  of  the  mistake,  he  must 
bear  the  consequences. 


528  OF   CONTRACTS. 

§  898.  Agents  are  general,  or  special ;  general,  when  they 
are  authorized  to  do  all  of  the  principal's  business,  or  all  of 
a  certain  kind  ;  special,  wlien  their  authority  extends  to  one 
or  two  particular  things.  An  agency  ctf  either  character 
may  he  constituted  directly  by  a  written  or  verbal  authority 
from  the  principal ;  or  may  be  presumed  from  the  relations 
of  the  parties  and  the  nature  of  the  employment,  or  from 
the  repeated  acts  of  the  agent  adopted  and  confirmed  by 
the  principal ;  or  may  be  established  by  a  subsequent  ratifi 
cation.  Another  fundamental  rule  is,  that  a  general  agent, 
liowever  appointed,  has  all  the  implied  powers  necessary 
from  the  nature  of  the  business  ;  and  his  acts  will  bind 
the  principal,  so  long  as  they  are  within  the  ordinary 
scope  of  the  employment  in  which  he  is  engaged.  On  the 
contrary,  if  a  special  agent  exceed  his  authority,  the  princi- 
pal is  not  bound.  As  a  corollary  to  this  rule,  while  the 
agent  confines  himself  within  his  authority,  he  incurs  no  lia- 
bility to  third  persons  with  whom  he  deals ;  but  when  he 
oversteps  it,  so  that  the  principal  is  not  held,  he  himself  be- 
comes the  responsible  party.  From  these  comprehensive 
doctrines  are  derived  all  of  the  more  particular  rules  which 
have  been  applied  by  the  courts  to  the  innumerable  cases 
continually  arising  in  the  transactions  of  business. 

§  899.  ^n  agency  is  terminated  by  the  death  of  the 
agent;  by  the  restriction  of  the  power  to  a  particular  pe- 
riod of  time  ;  by  the  execution  of  the  business  ;  by  a  revoca 
tion  of  the  power  ;  and  by  the  principal's  death. 

§  900.  Of  Partryrshipa. — Partnership  is  a  contract  of 
two  or  more  persons,  to  place  their  money,  effects,  labor 
and  skill,  or  some  or  all  of  them,  in  lawful  commerce  or 
business,  and  to  divide  the  profits  and  bear  the  loss  in  cer- 
tain proportions.  The  relation  is  to  be  viewed  in  two  as- 
pects :  first,  as  it  affects  the  rights  and  liabilities  of  the  part- 
ners among  themselves ;  and  secondly,  as  it  affects  these 
rights  and  liabilities  toward  others.  As  between  the  indi- 
viduals who  compose  it,  a  partnership  can  only  be  created 


PAKTNEKSHIP.  529 

by  an  express  agreement,  which  may  be  in  writing  or 
merely  verbal.  The  provisions  of  this  agreement,  which  are 
to  determine  the  amounts  contributed,  the  labor  performed, 
and  the  shares  of  profits  received  or  losses  borne,  by  each, 
may  be  such  as  it  is  their  pleasure  to  adopt.  It  furnishes 
the  rule  for  settling  the  accounts  of  the  concern  among  the 
partners,  with  the  limitation  tliat  when  it  is  deficient  in  any 
essential  particular,  the  law  will  supply  the  deficiency  by 
doing  justice  and  equity  as  far  as  possible. 

§  901.  But  the  relations  of  the  partners  toward  third 
persons  depend  very  little  upon  the  nature  of  their  agree- 
ments among  themselves ;  for  the  law  defines  these  rela- 
tions, and  it  is  not  in  their  power  to  limit  them.  Indeed, 
there  may  be  partnerships  so  far  as  third  persons  are  con- 
cerned, cases  where  partnership  liability  is  incurred,  when 
no  such  cominnnity  of  interest,  in  fact,  exists.  In  general, 
whoever  participates  in  the  profits,  or  suffers  himself  to  be 
held  out  to  the  world  as  a  partner,  is  liable  to  third  persons 
as  such.  Each  partner  is  responsible  for  the  whole  debts  of 
the  firm,  and  cannot  restrict  this  liability  by  any  agreement 
with  his  fellows  as  to  his  share  of  the  losses. 

§  902.  The  most  important  rule  in  relation  to  this  sub- 
ject, which  is  found  not  only  in  the  laws  of  England  and 
America,  but  throughout  Europe,  is,  that  the  whole  firm, 
and  all  of  its  members,  are  bound  by  the  acts  and  contracts 
of  each  partner  with  reference  to  the  j)artnership  business 
and  affairs.  This  doctrine  is  a  result  of  the  community  of 
interest  which  the  members  have  in  the  common  property, 
and  of  the  agency  which  all  bestow  upon  each.  All  that  is 
necessary  to  fix  the  liability  upon  the  firm  is,  that  the  act 
should  be  done  within  the  scope  of  tlic  partnership  business, 
even  though  the  results  of  that  act  should  in  no  way  benefit 
the  firm,  and  even  though  they  should  be  entirely  diverted 
from  their  proper  ofiice  by  the  individual  member  who  does 
the  act.  This  fruitful  principle  has  been  developed  into 
many  particular  rules,  and  is  applied  to  the  innumerable 
34 


530  OF   C0NTEACT8. 

changing  circumstances  which  arise  in  the  affairs  of 
business. 

§  903.  The  common  property  of  the  firm  is  regarded  by 
the  law  as  a  fund  devoted  primarily  to  the  payment  of  part- 
nership debts,  and  cannot  be  taken  by  any  private  creditor 
of  an  individual  partner,  until  these  debts  are  satisfied. 
Such  private  creditor  may,  however,  take  and  sell  his  debt- 
or's interest  in  this  fund,  but  will  become  entitled  only  to 
such  share  as  remains  after  the  partnership  accounts  are  set- 
tled, the  firm  debts  paid,  and  the  amount  of  this  interest  is 
ascertained. 

§  904.  Any  member  of  a  partnership  may,  in  general, 
dissolve  the  firm  at  any  time  by  withdrawing  therefrom,  or 
by  selling  his  whole  interest,  or  suffering  it  to  be  taken  and 
sold  on  execution.  It  is  also  dissolved  by  the  death  of  a 
partner. 

§  905.  Of  Bills  of  Exchange  and  Promissory  Notes. — 
A  bill  of  exchange  is  a  written  request  or  order  from  one 
person  to  another  for  the  absolute  pajmaent  of  a  certain  sum 
of  money.  This  form  of  mercantile  contract  was  invented 
in  Europe  for  the  purpose  of  effecting  the  transfer  of  sums  of 
money  from  one  place  to  another,  without  the  expense  and 
risk  of  a  manual  interchange  of  the  coin.  Thus  if  A.,  living 
in  London,  has  a  sum  of  money  in  the  hands  of  B.,  residing 
in  Paris,  which  he  wishes  to  obtain,  he  may  draw  an  order 
on  his  debtor  for  the  amount,  sell  it  to  C,  who  goes  to 
Paris,  carries  with  him  the  writing,  and  there  receives  the 
coin  from  B.  By  this  simple  method  all  parties  are  at  last 
placed  in  the  same  position  in  which  they  would  have  been, 
had  B.  procured  money  to  be  transported  from  Paris  to  Lon- 
don, and  had  C.  conveyed  an  equal  amount  from  London  to 
Paris.  The  convenience  of  this  simple  contrivance  was  so 
manifest,  that  bills  of  exchange  soon  became  universal ;  and 
now  the  whole  interchange  of  values  throughout  the  world, 
and  the  balances  of  debt  and  credit  for  the  entire  commerce 
of  mankind,  are  effected  and  arranged  through  their  means. 


NEGOTIABLE    PAPER.  531 

The  person  who  draws  the  bill  is  called  the  drawer ;  the  one 
to  whom  it  is  addressed,  and  who  is  expected  to  pay,  is  the 
drawee,  and  after  it  has  been  presented  to  him,  and  he  has 
promised  to  pay,  he  is  known  as  the  acceptor  ;  the  original 
party  to  whom  payment  is  directed  to  be  made  is  called  the 
payee,  and  if  he  transfer  and  endorse  it,  the  endorser ;  and 
generally  any  one  who  has  possession  and  the  right  to  col- 
lect it  is  termed  the  holder.  A  promissory  note  is  a  written 
promise  to  pay  a  certain  sum  of  money  absolutely.  The 
person  who  promises  is  known  as  the  maker,  and  the  one  to 
whom  the  promise  is  originally  given,  as  the  payee.  These 
contracts  are  very  similar  in  their  incidents  to  bills  of  ex- 
change, but  were  of  a  later  invention.  In  describing  the 
origin  and  uses  of  bills  and  notes.  Prof.  Parsons  says : — 
"  Money  was  invented  as  the  representative  of  property, 
and  as  therefore  greatly  facilitating  the  exchange  of  all 
property,  and  as  measuring  its  convertible  value.  The 
utility  of  this  means  enlarged,  as  the  wants  of  commerce, 
which  grew  with  civilization,  were  developed.  But,  at 
length,  more  was  needed ;  it  became  expedient  to  take  a 
further  step ;  and  negotiable  paper,  first  bills  of  exchange 
and  then  promissory  notes,  were  introduced  into  mercantile 
use,  as  the  representative  of  the  rejpresentative  of  property — 
that  is,  as  the  representative  of  money.  Coin  is  itself  a  sub- 
stantial article,  not  easily  moved  to  great  distances  in  large 
quantities  ;  and  while  it  adequately  represented  all  proper- 
ty, it  failed  to  represent  credit.  And  this  new  invention 
was  made,  and  negotiable  paper  introduced,  to  extend  this 
rej^resentation  another  degree.  It  does  not  represent  prop- 
erty directly,  but  money.  And  as  in  one  form  it  represents 
the  money  into  which  it  is  convertible  at  the  pleasure  of  the 
holder,  so  in  another  form  it  represents  a  future  payment 
of  money,  and  then  it  represents  credit.  And  as  names  in 
any  number  may  be  written  on  one  instrument,  that  instru- 
ment represents  and  embodies  the  credit  of  one  man  or  the 
aggregated  credit  of  many.     Tims,  by  this  invention,  vast 


532  OF  CONTRACTS. 

amounts  of  value  may  change  ownersliip  at  any  distance, 
and  be  transmitted  as  easily  as  a  single  coin  could  be  sent. 
And  by  the  same  invention,  while  property  is  used  in  com- 
mercial intercourse,  the  credit  which  springs  from  and  is 
due  to  the  possession  of  that  property  may  also  be  used  at 
the  same  time,  and  in  the  same  way.  And  all  this  is  pos- 
sible because  negotiable  paper  is  the  adequate  representa- 
tive of  money,  and  of  actual  credit,  in  the  transaction  of 
business.  And  it  is  possible,  therefore,  only  while  this  pa- 
per is  such  representative,  and  no  longer ;  and  the  whole 
system  of  the  law  of  negotiable  paper  has  for  its  object  to 
make  this  paper,  in  fact,  such  representative,  and  to  secure 
its  prompt  and  available  convertibility,  and  to  provide  for 
the  safety  of  those  who  use  this  implement,  either  by  mak- 
ing or  receiving  it,  in  good  faith."  (Parsons  on  Contracts, 
vol.  i.,  p.  203). 

§  906.  The  peculiar  characteristic  of  bills  and  notes, 
that  which  distinguishes  them  fi'om  other  written  contracts 
for  the  payment  of  money,  is  their  negotiability.  By  an 
ancient  rule  of  the  common  law,  things  in  action  could  not 
be  transferred,  so  as  to  give  the  new  proprietor  complete 
rights  of  ownership  ;  and  even  now,  when  such  a  transfer  is 
possible,  the  purchaser  takes  them  subject  to  all  the  defences 
which  the  promiser  has  against  the  original  owner ;  he  ob- 
tains only  the  identical  rights  and  claims  which  this  original 
owner  could  have  enforced  against  the  person  who  executed 
the  contract.  But  with  bills  and  notes  the  rule  is  different. 
As  they  were  intended,  and  are  used,  as  a  medium  of  ex- 
change, the  most  complete  confidence  in  them  is  essential, 
and  no  holder  should  be  obliged  to  enquire  into  the  relations 
which  may  exist  between  the  original  parties,  in  order  to 
discover  whether  the  engagement  is  valid  for  wliat  it  pur- 
ports to  be.  To  accomplish  this  necessary  object,  the  cus- 
tom of  merchants,  early  adopted  and  sanctioned  by  the 
courts,  originated  the  rule  that  while,  as  between  the  origi- 
nal parties  to  a  bill,  its  validity  may  be  questioned,  after  a 


NEGOTIABLE   PAPER. 


533 


transfer  of  the  paper  to  a  new  holder,  made  in  the  ordinary 
course  of  business,  for  a  valuable  consideration,  before  the 
bill  is  due,  all  the  promiser's  defences  are  cut  off,  and  he  is 
liable  to  that  holder  at  all  events.  Promissory  notes  ac- 
quired the  character  of  negotiability  somewhat  later  than 
bills  of  exchange,  and  in  England  a  statute  was  passed  in 
the  reign  of  Queen  Anne  to  place  the  two  upon  the  same 
footing.  Transfers  made  after  the  paper  is  due,  or  without 
a  valuable  consideration,  or  with  notice  of  any  defect,  do 
not  give  the  holder  this  important  right,  but  leave  the  va- 
lidity of  tlie  bill  or  note  in  his  hands  to  be  questioned  by 
the  promiser  thereupon.  That  a  bill  or  note  may  be  nego- 
tiable, it  must  be  payable  to  some  person  "  or  order,"  or 
payable  to  bearer.  When  payable  to  order,  the  payee  ne- 
gotiates and  transfers  it  by  writing  his  name  upon  the  back, 
called  endorsing  it,  and  by  delivering  it  to  the  new  owner. 
This  endorsement  may  itself  be  made  to  the  order  of  the 
new  holder,  in  which  case  he  also  must  endorse  the  paper 
upon  a  transfer  by  him  ;  or  it  may  be  the  name  of  the  payee 
simply,  in  which  case  the  endorsement  is  said  to  be  in  blank, 
and  operates  to  make  the  note  payable  to  bearer.  Notes 
originally  made  payable  to  bearer,  and  those  which  become 
so  by  a  blank  endorsement,  are  transferable  without  any 
subsequent  endorsement,  although  it  is  the  usual  practice 
for  each  holder,  as  he  parts  with  the  paper  to  another,  to 
add  his  own  name  upon  the  back. 

§  907.  The  rules  of  the  law  in  reference  to  negotiable 
paper  have  for  their  object  to  ascertain  the  rights  and  lia- 
bilities of  the  parties  thereto,-  the  holders,  the  makers,  the 
acceptors,  and  the  endorsers.  The  rights  of  the  holder  are 
protected  by  the  general  doctrine  last  above  stated  ;  and  so 
much  so,  that,  provided  he  took  the  bill  or  note  innocently, 
in  the  course  of  trade,  for  a  valuable  consideration,  and  before 
it  was  due,  he  may  recover,  even  though  it  came  to  him  from 
a  person  who  liad  stolen  it  from  th.e  true  owner,  or  who  had 
obtained  it  by  fraud,  or  even  though  it  had  already  been  paid. 


534  OF   CONTRACTS. 

§  908.  Bills  oJ  exchange  are  drawn  payable  at  sight, 
or  at  so  many  days  after  sight,  or  at  so  many  days  after 
date.  When  payable  at  a  fixed  time  after  sight,  they 
must  be  presented  to  the  drawee  for  acceptance,  and  this 
act  is  the  legal  meaning  of  the  term  "  sight."'  In  the  other 
two  cases  they  need  not  be  presented  for  acceptance  until 
the  day  of  payment.  Where  acceptance  is  refused,  the  other 
parties  to  the  bill  are  to  be  notified  of  that  fact  in  the 
same  manner,  and  with  the  same  eff'ect,  as  hereafter  de- 
scribed in  the  case  of  a  refusal  of  payment.  The  ac- 
ceptance is  usually  made  by  the  drawee  writing  the  word 
"  accepted  "  across  the  face  of  the  bill,  and  signing  his  name 
thereto. 

§  909.  After  the  acceptance,  the  drawee,  now  called  the 
acceptor,  is  in  the  same  legal  condition  as  the  maker  of  a 
promissory  note.  Both  are  the  parties  to  the  paper  primarily 
liable  for  payment ;  and  the  liability  of  endorsers  of  bills 
and  notes,  and  of  drawers  of  bills,  only  arises  upon  the  fail- 
ure of  these  principal  parties  to  fulfil  their  obligations.  The 
holder,  if  he  has  taken  the  proper  steps,  to  be  immediately 
described,  may  look  to  all  the  parties  collectively,  or  to 
either  one  of  them  singly,  for  payment.  If  he  recover  the 
amount  from  the  endorser  of  a  bill,  that  person  has  in  turn 
the  right  of  recovery  from  those  who  precede  him,  and  so 
the  responsibility  falls  back  to  the  drawer,  and  finally  to  the 
acceptor,  who  can  have  recourse  to  no  one,  for  he  is  the 
principal  debtor.  The  same  is  true  of  the  parties  to  a  note. 
An  endorser  or  drawer  who  has  paid  to  the  holder,  cannot, 
however,  recover  from  any  of  the  persons  who  became  par- 
ties subsequently  to  himself.  In  this  rule  the  law  follows  a 
plain  dictate  of  justice.  The  acceptor  of  a  bill  is  suj^posed 
to  be  indebted  to  the  drawer,  and  the  maker  of  a  note  to 
the  payee.  The  drawer  of  the  bill,  and  the  payee  of  the 
note,  transfer  it  for  value  received  ;  the  new  owner  in  turn 
endorsee  it  to  another  for  value ;  and  so  the  paper  passes 
from  hand  to  hand,  each  endorser  receiving  the  value  from 


NEGOTIABLE   PAPER.  535 

the  one  immediately  subsequent  to  biinself.  If  then  the 
last  endorser  is  obliged  to  pay  the  paper,  he  will  have 
parted  with  its  value  twice,  and  the  consideration  which  he 
gave  to  his  immediate  predecessor  will  have  failed  him. 
Plainly  then  he  is  in  equity  entitled  to  recover  back  from 
that  predecessor  what  he  has  been  forced  to  pay  to  the 
holder.  And  this  one  in  turn  is  clothed  with  the  same 
rights  toward  his  prior  endorser,  and  so  through  the  whole 
series.  And  the  same  result  will  be  reached,  by  allowing 
the  holder,  or  any  endorser  who  has  paid  him,  to  enforce 
the  claim  from  either  of  the  prior  parties  he  may  choose. 
But  no  such  right  exists  for  one  party  to  recover  from  a  sub- 
sequent endorser,  for  the  value  has  already  been  received 
from  him,  and  no  amount  paid  to  him.  Thus  the  rules  of 
law  which  regulate  the  liabilities  of  the  parties  to  com- 
mercial paper,  are  not  arbitrary,  nor  even  based  upon  con- 
venience alone,  but  are  in  accordance  with  the  plainest 
equity  and  good  morals. 

§  910.  It  only  remains  to  enquire  how  the  liabilities  of 
the  drawers  and  endorsers  are  to  be  fixed  and  made  certain. 
Something  plainly  needs  to  be  done  to  this  end,  for  their 
responsibilities  are  evidently  contingent  upon  the  failure  of 
the  acceptor  or  maker  to  perfoi*m  his  obligation,  and  they 
cannot  know  whether  this  contingency  has  become  an  abso- 
lute charge,  until  they  learn  whether  performance  has  been 
made  or  not.  It  is  essential,  then,  that  a  reasonable  attempt 
be  made  by  the  holder  to  obtain  payment  from  the  maker 
or  acceptor,  and  that  in  case  of  failure,  a  notice  of  that  fact 
be  given  in  a  reasonable  time  and  manner  to  the  drawer  and 
each  endorser.  This  the  law  requires,  but  it  also  requires 
still  more.  In  most  transactions,  when  the  liability  of  one 
party  depends  upon  the  acts  of  another,  the  law  judges  of 
the  reasonableness  of  the  latter's  proceedings  by  the  peculiar 
circumstances  of  each  case.  But  here  it  avoids  all  such  en- 
quiries, and  lays  down  certain,  fixed,  peremptory  rules, 
which  must  be  followed  in  order  to  change  the  contingent 


536  OF   CONTRACTS. 

liability  of  these  parties  into  an  absolute  one.  To  this  end, 
on  the  day  when  the  bill  or  note  falls  due,  a  demand  of  pay- 
ment must  be  made  upon  the  drawee,  or  acceptor,  or  maker, 
at  the  place  appointed  for  payment,  or  at  his  house  or  resi- 
dence or  place  of  business,  or  upon  him  personally,  if  no 
particular  place  be  appointed.  When  a  particular  place  is 
appointed,  such  as  a  bank,  which  is  the  usual  practice,  the 
demand  is  made  there ;  otherwise  it  may  be  made  at  the 
party's  place  of  business  or  residence  in  his  absence  there- 
from, or  of  him  personally  anywhere.  Few  circumstances 
will  excuse  this  actual  form  of  demand,  and  those  only 
which  show  it  to  be  absolutely  impossible.  The  time  of  the 
demand  is  of  the  utmost  importance.  The  law  of  England, 
of  the  United  States,  and  of  most  commercial  countries,  al- 
lows a  number  of  days  in  addition  to  those  specified  in  the 
bill  or  note,  which  are  called  days  of  grace.  With  us  their 
number  is  three.  The  demand  must  be  on  the  last  of  these, 
within  reasonable  hours.  In  the  great  majority  of  cases 
bills  and  notes  are  made  payable  at  banks,  and  the  demand 
is  made  at  the  close  of  the  banking  hours  on  the  afternoon 
of  the  third  day.  When  that  day  falls  on  Sunday,  or  a  gen- 
eral holiday,  the  second  is  the  legal  day  for  this  purpose. 
A  demand  earlier  or  later  than  the  proper  day  is  equally  in- 
sufficient to  charge  the  drawer  and  endorsers.  Of  course  if 
payment  is  made,  all  the  parties  are  discharged  and  the 
functions  of  the  paper  are  ended.  But  upon  a  failure  to 
pay,  a  notice  of  the  demand  and  refusal  must  be  given  to 
the  drawer  and  endorsers  by  the  holder.  This  may  be 
either  sent  to  all  of  these  parties,  which  is  the  universal  cus- 
tom, or  to  the  last  one  in  order,  who  may  transmit  it  to  the 
one  next  preceding,  and  so  on  until  all  are  notified.  The 
notice  may  be  and  is  generally  in  writing,  and  sent  through 
the  mail.  It  may  be  sent  on  the  same  day  on  which  the 
demand  is  made,  or  must  be  on  the  one  following.  When 
the  parties  reside  in  the  same  town  or  city,  the  notice  must 
be  sent  by  a   private   messenger,  to  the  drawer's  or  en- 


NEGOTIABLE   PAPEE.  537 

dorser's  place  of  business  or  residence ;  but  this  rule  has 
been  altered  by  statutes  in  some  of  the  States,  which  permit 
a  resort  to  the  post  office  in  all  cases.  It  is  not  necessary 
that  the  notice  be  brought  home  to  the  party  for  whom  it  is 
intended ;  it  is  sufficient  if  the  holder,  within  the  limited 
time,  starts  it  on  its  way.  These  several  steps  are  necessary 
to  fix  the  liabilities  of  the  drawers  and  endorsers,  and  when 
they  have  been  properly  taken,  these  parties  all  become  ab- 
sohitely  responsible  to  the  holder  for  the  amount  of  the  bill 
or  note,  and  their  rights  among  themselves  are  the  same  as 
already  stated.  When  any  one  of  these  steps  has  been 
omitted,  or  improperly  done,  all  these  parties  are  discharged 
from  any  claim  of  the  holder,  and  of  course  from  any  lia- 
bilities among  themselves.  The  acceptor  or  maker,  how- 
ever, will  in  general  coutinue  responsible  to  the  holder, 
even  though  the  latter  has  neglected  to  make  a  demand  at 
the  proper  time. 

I  close  here  the  subject  of  contracts  ;  although  there  are 
some  others  of  great  importance  in  business,  which  would 
be  described,  did  my  limits  permit. 


CHAPTER  lY. 

LEGAL     MAXIMS. 

§  911.  Yert  many  of  the  general  principles  of  our  law 
have  been  compressed  into  the  form  of  short,  pithy  maxims, 
which  are  foimd  scattered  through  the  judgments  of  courts, 
and  the  works  of  text  writers.  Some  of  these  were  borrowed 
from  the  Roman  jurists  ;  others  were  strack  into  their  pres- 
ent shape  by  the  genius  of  some  old  English  judge ;  all  are 
of  the  greatest  interest  and  importance,  as  they  contain 
truths  of  more  or  less  general  applicability.  It  must  not  be 
supposed  that  they  are  all  of  equal  value.  Some,  indeed, 
are  the  expressions  of  principles  which  lie  at  the  very  foun- 
dation of  the  municipal  law  as  a  system  of  rules  whereby 
right  and  justice  are  enforced  :  otJiers  relate  to  special  sub- 
jects or  classes  of  subjects  ;  to  matters  of  public  interest ; 
to  the  orderly  course  of  judicial  procedure,  and  the  ideas 
upon  which  it  is  founded  ;  to  the  admissibility  and  effect  of 
evidence ;  to  the  acquisition  and  ownership  of  property ; 
to  the  construction  of  statutes,  written  instruments  and  con- 
tracts, and  the  like.  I  propose  in  this  final  chapter,  to  quote 
some  of  the  more  important  of  these  maxims,  and  to  give  a 
very  brief  description  of  the  meaning  and  application  of 
each.  As  tliey  are  either  extracted  from  the  writings  of 
Roman  lawyers,  or  are  the  product  of  an  ancient  age  of  the 
common  law,  they  are  all  clothed  in  a  Latin  garb. 


LEGAL    MAXIMS.  539 

§  912.  Solus  populi  swprema  lex. — The  public  welfare  is 
the  highest  law.  From  this  principle  are  derived  those 
rules  which  subordinate  private  rights  as  to  persons  and 
property,  to  the  public  good. 

Leges  jposteriores  priores  cont/r arias  ahrogant. — Later  stat- 
utes repeal  prior  ones  to  which  they  are  opposed.  In  this 
maxim  is  embodied  an  expression  of  the  supreme  power 
which  the  legislatm'e  holds  over  the  municipal  law. 

Boni  judicis  est  amjjliare  jurisdictionem. — It  is  the  duty 
of  a  good  judge  to  enlarge  his  jurisdiction.  We  have  here 
the  essential  idea  of  the  continuous  development  of  the  law 
of  judicial  decision. 

J^emo  debet  esse  judex  in  propria  sua  causa. — !N"o  one 
ought  to  be  a  judge  in  his  own  cause.  The  truth  of  this 
principle  is  self-evident. 

§  913.  Ubi  eadem  ratio  ibi  idem  jus. — Like  reason  makes 
like  law.  This  principle  has  been  constantly  acted  upon  by 
the  courts  in  their  deductions  of  legal  rules  from  admitted 
premises,  and  the  application  of  them  to  particular  cases. 

Cessante  ratione  legis  cessat  ipsa  lex. — The  reason  of  a 
rule  of  law  ceasing  the  rule  itself  ceases,  is  another  land- 
mark to  guide  the  judges  in  their  work  of  judicial  legis- 
lation. 

§  914.  Ubi  jus  ibi  remedium. — There  is  no  v/rong  with- 
out a  remedy.  This  is  one  of  the  most  fruitful  of  legal  prin- 
ciples, and  I  have  already  shown  somewhat  of  its  applica- 
tion by  the  courts  at  an  early  period,  in  devising  new  forma 
of  action  to  meet  new  wants.  And  even  at  the  present  day 
it  is  constantly  acted  upon  in  applying  the  law  to  unusual 
circumstances, 

Injure  non  remota  causa  sed  jproxima  spectatur. — In  law 
the  immediate  and  not  the  remote  cause  of  any  event  is 
regarded. 

Actiis  Dei  nemini  facit  injuriam. — The  act  of  God  is  so 
treated  by  the  law  as  to  affect  no  one  injuriously. 

Lex  non  cogit  ad  impossibilia. — The  law  compels  no  one 


540  LEGAL   MAXIMS. 

to  impossibilities.  The  impossibilities  here  meant  are  those 
■wliich  create  a  necessary  and  inevitable  disability  to  per- 
form the  mandatory  part  of  the  law,  or  to  forbear  the  pro- 
hibitory. 

Ignoratio  facti  excusat^—rignoratio  juris  non  excusat. — 
Ignorance  of  the  fact  excuses, — ignorance  of  the  law  does 
not  excuse.  In  the  latter  portion  of  this  maxim  is  contained 
the  fundamental  principle,  that  all  persons  must  be  pre- 
sumed to  know  the  law.  An  admission  of  the  contrary 
would  be  virtually  to  abolish  all  law.  But  as  to  mistakes 
or  ignorance  of  facts  there  is  no  such  public  necessity,  and 
it  would  be  inequitable  to  hold  persons  with  the  same  rigor 
to  the  consequences  of  acts  done  by  them  in  ignorance  of 
the  facts  of  the  case. 

Volenti  non  fit  injuria. — That  to  which  one  consents 
cannot  work  him  a  legal  injury.  In  accordance  with  this 
just  maxim,  no  one  can  maintain  an  action  for  a  wrong 
where  he  has  consented  or  contributed  to  the  act  which 
occasions  the  loss. 

Nullus  Gomniodum  cwpere  potest  de  injuria  sua  pro- 
pria.— No  one  shall  take  advantage  of  his  own  wrong. 
Tliis  maxim  is  similar  to  the  last,  but  is  more  positive  in  its 
prohibition. 

Acta  externa  indicant  interiora  secreta. — Acts  indicate 
the  intention.  This  rule  is  of  general  application  ;  but  it  is 
of  special  use  in  the  criminal  law,  where  the  external  acts 
are  the  only  materials  to  which  courts  and  juries  can  resort 
to  judge  of  that  secret  intention  which  is  the  essence  of 
crime. 

Nemo  dehet  his  vexari  pro  una  et  eadem  causa. — No  man 
ought  to  be  twice  vexed  for  the  same  cause.  In  this  most 
important  and  sahitary  maxim  is  embodied  the  doctrine 
that  the  judgments  of  courts  are  conclusive  between  the 
same  parties.  It  is  a  rule  of  public  policy,  that  there  should 
be  an  end  of  litigation  ;  and  the  defence  of  o^es  adjudicata, 
the  matter  has  once  been  adjudged,  if  true,  is  good  in  all 


LEGAL   MAXIMS.  54:1 

eases,  so  long  as  the  judgment  stands.  So  far  as  it  relates 
to  criminal  trials,  our  national  constitution  has  incoi'po- 
rated  the  maxim  into  its  bill  of  rights. 

§915.  Qui  prior  est  temjppre^  jyotior  est  jure. — He  has 
the  better  title  who  was  prior  .in  point  of  time.  * 

Gujus  est  solum  ejus  est  usque  ad  eoehim. — A  man's 
property  in  the  soil  reaches  to  the  sky. 

Quidquid  jplantatur  solo  solo  cedit.  —  "Whatever  is 
affixed  to  the  soil  belongs  to  the  soil.  These  three  rules 
have  been  illustrated  in  the  preceding  chapter  upon  prop- 
erty. ^ 

Sic  utere  tuo  ut  cdienuin  non  Icedas. — So  use  your  own 
property  as  not  to  injure  that  of  another.  This  is  a  maxim 
of  great  importance,  and  of  very  general  aiDplieation.  It 
shows  that,  however  perfect  a  particular  owner's  rights  of 
private  property  may  be,  they  are  limited  by  the  fact  that 
others  also  have  their  rights  to  the  same  extent,  and  the  en- 
joyment of  all  must  be  protected  against  the  misuse  of  any. 
The  principle  then  goes  further  than  the  prohibition  of  an 
actual  trespass  upon  the  person  or  property  of  another.  It 
reaches  the  owner  within  the  limits  of  his  own  possessions. 
To  this  maxim  are  referred  the  rules  of  law  against  nui- 
sances, which  give  a  right  of  action  to  an  individual  harmed 
by  a  private  nuisance  wholly  upon  the  land  of  another. 

Domus  sua  cuique  est  tutissimum  refugium. — Every 
man's  house  is  his  castle.  The  law  is  very  particular  to 
guard  private  dwellings  against  violence.  So  true  is  this, 
that  the  occupant  is  justified  in  killing  thieves  who  come  to 
the  house  to  rob  him  ;  or  persons  attempting  to  burn  or 
break  open  the  house  in  the  night  time,  or  to  break  it  open 
with  intent  to  rob  in  the  day  time.  So  in  defence  of  his 
house  a  man  is  justified  in  killing  a  trespasser  who  would 
forcibly  dispossess  him  of  it.  A  sheriff  or  other  oflicer  com- 
ing to  serve  an  execution  or  any  otlier  process  in  a  private 
suit  against  the  occupant,  may  enter  the  house  if  the  outer 
door  be  open,  and,  when  thus  in,  may  break  open  an  inner 


64.2  LEGAL    MAXIM8. 

door  if  necessary  ;  but  lie  may  uot  for  sucli  a  purpose  break 
open  the  outer  door  to  effect  an  entry,  even  after  a  demand 
to  be  let  in.  The  rule  is  not  so  if  the  officer  come  to  arrest 
the  occupant  for  a  crime. 

*§  916.  Inteij>retationes  faciendce  sunt,  ut  res  magis 
valeat  quam  pereat. — Interpretations  should  be  so  made  that 
the  matter  may  be  upheld,  rather  than  overthrown. 

Verha  intentioni,  non  e  contra,  dehent  insei^ire. — Words 
should  be  construed  according  to  the  intention  of  the  par- 
ties, and  not  contrary  thereto.  These  are  the  fundamental 
maxims  which  guide  the  courts  in  the  construction  and 
intei"pretation  of  all  written  instruments  and  of  statutes. 
The  intention  is  to  be  discovered,  if  possible,  and  then  car- 
ried into  effect.  These  principles  are  most  fruitful  in  results, 
and  indeed  contain  in  themselves  the  essence  of  all  other 
rules  of  construction.  The  five  following  maxims  also  refer 
to  the  same  general  subject. 

Yerba  chartarum  fortius  accipiuntur  contra  proferen- 
tem.— The  words  of  an  instrument  are  taken  most  strongly 
against  the  party  employing  them.  This  is  intended  to  pre- 
vent the  intentional  introduction  of  ambiguous  language ; 
for  the  rule  always  adopts  that  meaning  which  is  most  pre- 
judicial to  the  one  giving  the  writing,  and  advantageous  to 
the  one  receiving  it. 

Cerium  est  quod  certurn  reddl  potest. — That  is  certain 
which  can  be  made  certain.  This  principle  is  evidently  just 
and  logical,  and  is  of  very  common  application. 

Falsa  demonstratio  non  nocet. — A  wrong  description 
does  not  make  an  instrument  inoperative.  Tliis  maxim 
refers  to  any  erroneous  description  of  a  person  or  thing  in  a 
writing,  and  is  to  be  taken  with  this  limitation,  that  there 
must  be  a  description  sufficiently  correct  to  determine  what 
particular  person  or  thing  is  meant. 

Exj/ressio  unius  est  exclusio  cdterius. — ^Tlie  express  men- 
tion of  one  thing  implies  an  exclusion  of  another.  This  is 
one  of  the  fundamental  rules  of  intei-pretation,  and  is  applied 


LEGAIi  MAXIMS.  543 

especially  to  statutes,  so  as  to  prevent  the  extension  of  their 
commands  or  prohibitions  to  other  things  of  the  same  class, 
when  an  enumeration  of  the  subjects  within  their  provisions 
is  expressly  made. 

Qui  hceret  in  liter  a  hoeret  in  cortice. — He  who  hangs  m 
the  letter  hangs  in  the  bark.  This  metaphorical  maxim  was 
doubtless  first  announced  by  some  judge  in  the  good  old 
days  of  English  archery.  The  figure  is  that  of  an  arrow 
shot  by  a  weak  arm,  which  only  hangs  fastened  in  the  outer 
bark,  and  does  not  pierce  through  into  the  heart  of  the  tree. 
So  one  who  contents  himself  with  the  mere  language  of  an 
instrument  or  statute,  without  reference  to  its  design  and 
pm-pose,  does  not  penetrate  into  its  intention  and  meaning. 

§  917.  Modus  et  conveniio  vincunt  legem. — The  form  of 
the  agreement  and  the  convention  of  parties  overrules  the 
law.  This  and  the  following  maxims  contain  some  of  the 
fundamental  principles  of  the  law  of  contracts,  and  their 
application  can  be  seen  from  the  preceding  chapter. 

Quilihet  jpotest  renuntiare  juri  pro  se  introducto. — Any 
one  may  renounce  the  benefit  of  a  right  or  provision  intro- 
duced entirely  in  his  own  favor.  This  principle  is  univer- 
sal, and  applies  not  only  to  those  who  may  enforce  substan- 
tial claims,  but  to  those  who  have  valid  defences  against 
claims  brought  against  them. 

Qui  sentit  commodum  sentire  debet  et  onus. — He  who 
derives  the  advantage,  ought  to  bear  the  burden. 

In  cequcdi  jure  melior  est  conditio  possidentis. — When 
the  right  is  equal,  the  party  in  possession  has  the  stronger 
claim.  This  rule  is  applied  in  numerous  ways,  and  to  very 
different  circumstances.  Mere  possession  confers  a  good 
title  to  land  or  things  personal  as  against  other  persons  who 
have  no  better  title.  When  two  individuals  have  an  equit- 
able claim  of  equal  weight,  the  balance  inclines  in  favor  of 
the  one  in  possession.  And  the  rule  also  applies  to  those 
who  are  equally  guilty  of  a  wrong. 

Ex  dolo  malo  non  oritur  actio. — A  right  of  action  cannot 


54:4  LEGAL   MAXIMS. 

arise  from  a  fraud.  This  maxim  lias  reference  of  com-se  to 
a  riglit  of  action  in  favor  of  the  one  who  has  committed  the 
wrong ;  for  in  favor  of  the  persons  injured  by  it,  fraud  is 
always  the  source  of  rights  which  the  law  enforces  with  the 
utmost  rigor. 

Ex  nudo  jpacto  iion  aritnir  actio. — No  right  of  action 
arises  from  a  bare  promise.  In  this  maxim  is  contained 
that  fundamental  doctrine  of  the  law  of  contracts,  which 
requires  the  presence  of  a  consideration  in  all  cases. 

Quifacit  jper  alium  facit  per  se. — He  who  acts  by  an- 
other acts  by  himself. 

Respondeat  superior. — Let  the  principal  answer. 

Omnis  ratihabitio  retrotrahitur  et  mandate  priori  oequi- 
paratur. — Every  ratification  retroacts  and  is  equivalent  to  a 
prior  command.  The  three  preceding  maxims  contain  a 
summary  of  the  law  of  principal  and  agent. 

Vigilanti^us,  non  dormie7itihus,  jura  subveniunt. — The 
laws  assist  the  vigilant,  and  not  those  who  sleep  over  their 
rights. 

With  this  enumeration  of  a  few  of  those  maxims  which 
lie  scattered  like  gems  through  the  deposits  of  legal  lore 
that  have  accumulated  from  an  early  age,  I  close  the  pres- 
ent work,  not  without  hope  that  it  may  serve  to  convey  to 
the  reader  some  idea  of  the  spirit  of  our  municipal  law,  and 
inspire  the  student  with  some  desire  to  comprehend  the 
noble  science  of  jurisprudence  and  legislation. 


THE  END. 


INDEX. 


A. 

Absolute  estates  in  land,  495,  496. 
Absolute  property  defined,  491. 
Absolute  property  in  things  personal,  492. 
Absolute  rights  of  persons  generally,  360-419. 
Acceptance  of  bill  of  exchange,  534. 
Acceptilation,  in  later  Roman  law,  342. 
Acceptor  of  bill  of  exchange,  liabilities  of,  534. 
Acknowledgment  of  deeds,  484. 
Acquiring  property,  methods  of,  459-490. 
Acta  externa  indicant  inter iora  secreta,  540. 
Action,  definition  of,  113. 
Action,  forms  of,  ancient,  116. 
Action,  forms  of,  in  United  States,  121. 
Action,  forms  of,  necessity  for  new,  117. 

Action,  forms  of,  new,  invented  by  judges,  118-121. 

Action,  forms  of,  when  introduced  in  England,  115. 

Action,  things  in,  defined,  457. 

Actions  at  law,  how  commenced,  114. 

Actions  at  law,  how  commenced  in  United  States,  115. 

Actions  at  law,  in  England  and  United  States,  113-125. 

Actions,  criminal,  125-129. 

Actions,  criminal,  in  France,  128. 

Actions,  criminal,  in  Germany,  127. 

Actions,  early  forms  of,  among  Romans,  104-107. 

Actions  in  courts  of  equity,  129-137. 

Actions  in  courts  of  law  of  England  and  United  States,  113-129. 

Actions,  introduced  by  prsetors,  110-113. 

Actions,  later  forms  of,  among  Romans,  107-113. 
35 


546  INDEX. 

Active  trusts,  508.  i 

Actus  Dei  nominifacit  injuriam,  539.  -      i 

Administrators,  how  appointed,  465,  466. 

Administrators,  powers  and  duties  of,  466,  467. 

Admiralty  courts,  99-102. 

Admiraltj'  jurisdiction,  100,  101.  i 

Admissions,  147.  ' 

Adoption,  in  E-oman  law,  317. 

Adrogation,  in  lioman  law,  334.  ' 

Agency,  contract  of,  527,  528.  [ 

Agency  defined,  527.  i 

Agency,  general  principles  in  reference  to,  527. 

Agency,  how  terminated,  528.  I 

Agent,  powers  and  liabilities  of,  528. 

Agnation  in  early  Pcoman  law,  305. 

Aids,  feudal,  267.  i 

Alienation  of  lands  as  aflfected  by  the  feudal  system,  282-285.  | 

Alienation  of  lands,  suspension  of  power  of,  510,  511.  ] 

Aliens,  419.     "  ] 

Allodial  lands,  transfer  of,  to  feudal,  258.  ) 

Allodial  ownership  described,  252.  ; 

Alod,  the  Saxon,  227.  j 

American  Congress  and  legislatures,  34—38.  '] 

American  constitutional  conventions,  39.  j 

American  President,  power  of,  over  statutes,  44.  .       < 

Awjlo-Sa.ron  laws  and  institutions,  214-241.  i 

Annotations  of  Roman  emperor,  41. 

Arimani,  65.  < 

Aristocratic  period  of  Romun  law,  2^1-214:.  , 

Arrest  and  imprisonment  for  debt,  375,  376.  j 

Assemblies  of  the  people  as  a  source  of  statutes,  31-33.  \ 

Assemblies,  judicial  and  administrative,  among  the  Saxons,  234,  235.  !] 

Assent  requisite  in  contracts   577.  ■: 

Assent  requisite  in  marriage,  432-434.  ■' 

Assumpsit,  action  of,  119.  J 

B.  \ 

Bailee,  care  required  of,  524,  525.  ^ 

Bailment,  contract  of,  523-527.  ; 

Bailment  defined,  523.  .  ■> 

Bankruptcy  and  insolvency  as  methods  of  acquiring  property,  489,  490.  i 
Bankrupt  laws  in  England,  489. ' 

Bankrupt  laws,  power  of  Congress  to  pass,  490.  \ 

Baronial  courts,  263.  • 

Belief,  religious,  right  of,  392,  393.  J 


INDEX.  547 

Benefices,  feudal,  described,  255,  256. 

Beneficial  estates,  505-509. 

Beneficiary,  rights  of,  506. 

Bill  of  Rights,  364. 

Bills  of  exchange  and  promissory  notes,  530-537. 

Bills  of  exchange  defined,  530. 

Bills  of  exchange,  origin  and  uses  of,  530-532. 

Bills  of  exchange,  parties  thereto,  their  rights  and  liabilities,  533-537. 

Bills  of  exchange,  presentment  of,  534,  536. 

Bishops  in  England,  their  ancient  power  over  estates  of  intestates,  465. 

Boc  land,  229. 

Body  and  limb,  remedies  for  assaults  upon,  369. 

Body  and  limb,  security  of,  36S,  369. 

Boni  homines,  65. 

Bonijudicis  est  ampliare  jurisdictionenir  5Z9. 

British  constitution,  37. 

British  crown,  power  of,  over  statutes,  43,  44. 

Burden  of  proof,  146. 

Burgh,  the  Saxon,  231. 

C. 

Canons  of  inheritance  in  American  law,  473-475. 

Canons  of  inheritance  in  English  law,  471-473. 

Care,  degrees  of,  required  of  a  bailee,  524,  525. 

Carriers,  common,  liabilities  of,  526,  527. 

Celts  in  Britain,  215. 

Ceorls,  among  Saxons,  220. 

Certainty  in  law,  196-201. 

Cerium  est  quod  cerium  reddi  potest,  542. 

Cessante  ratione  legis,  cessat  ipsa  lex,  539. 

Cestui  que  use,  rights  of,  506. 

Challenges  to  juries,  77,  78. 

Chancellor,  95,  96,  134,  135. 

Chattels  defined,  457. 

Chattels,  real,  457. 

Children,  rights,  duties,  and  liabilities  of,  450,  451. 

Christianity,  its  influence  on  law  of  Teutonic  nations,  192-194. 

Christianity,  its  influence  on  legal  development,  190-194. 

Christianity,  its  influence  on  Roman  law,  191,  192. 

Circumstantial  evidence,  151-153. 

Cities,  maritime,  of  Middle  Ages,  353,  354. 

Citizens,  by  early  Roman  law,  302. 

Citizens  of  the  several  states,  423. 

Citizens  of  the  United  States  described,  and  their  rights,  419-425. 


o-iS  INDEX. 

Citizens,  rights  of,  423-425. 

Citizens,  who  are,  419-423. 

City,  the,  as  a  type  of  civilization,  32. 

Civil  actions  in  the  courts  of  law,  113-125. 

Code,  the,  50. 

Codes  as  a  form  of  statutes,  47-56. 

Codes,  compared  with  law  of  judicial  decision,  194-213. 

Codes,  general  nature  of,  47,  48. 

Codes  of  France,  52-54. 

Codes  of  Justinian,  49-52. 

Codes  of  Louisiana,  54. 

Codes  of  Xew  York,  55,  56. 

Codes  of  Koman  XII  Tables,  48,  49. 

Codicils,  478. 

Codicils  by  later  Roman  law,  329. 

Commodatum,  by  later  Eoman  law,  336. 

Common  carriers,  526,  527. 

'Common  ownership  in,  494,  512. 

Common  things  by  later  Roman  law,  318. 

Community  of  goods  between  husband  and  wife  in  French  law,  446-448. 

Comprehensiveness  as  an  element  of  legislation,  201,  202. 

Compurgators  in  Saxon  trials,  70-73. 

Congress  of  United  Ste,tes,  34-38. 

Congress  of  United  States  controlled  by  the  constitution,  35. 

Congress  of  United  States,  general  powers  of,  36. 

Congress  of  United  States  has  no  power  to  enforce  martial  law,  411,  413. 

Congress  of  United  States,  representatives  in,  how  elected,  426. 

Consanguinity,  rules  of,  in  Roman  and  English  law  compared,  332,  333. 

Consideration  of  contracts,  517. 

Consideration  of.  con  tracts,  classes  of,  518. 

Consideration  of  contracts,  examples  of,  518,  519. 

Consideration  of  contracts,  present,  past,  and  future,  519,  520. 

Constitution  of  Great  Britain,  37. 

Conatitution  of  United  States,  provisions  affecting  personal  rights,  364-366, 
394-396. 

Constitution  of  United  States,  provisions  afifecting  personal  rights,  obliga- 
tory on  all  departments  of  the  government,  397,  399^02. 

Constitutional  conventions,  39. 

Constitutions  of  Roman  emperors,  40-42. 

Constitutions,  written  and  traditional,  compared,  211,  212. 

Consulato  del  mare,  355. 

Contents  of  deeds,  485. 

Contracts,  as  a  method  of  acquiring  property,  481,  482. 

Contracts,  assent  requisite  in,  517. 


1 
I 

INDEX.  549                        i 

Contracts,  by  early  Roman  law,  312,  313.  1 
Contracts,  by  later  Roman  law,  335-341. 

Contracts,  by  later  Roman  law,  classes  of,  335.  | 

Contracts,  chapter  on,  513-537.  \ 

Contracts,  definition  and  classes  of,  481,  482,  514,  515.  ,| 

Contracts,  essentials  of,  515.  * 

Contracts  founded  on  consent,  ia  later  Roman  law,  338-341.  i 

Contracts  implied,  in  later  Roman  law,  341,  342.  i 

Contracts  in  writing,  in  later  Roman  law,  338.  • 

Contracts,  joint,  several,  and  joint  and  several,  516.  \ 

Contracts,  marriage,  442.  | 

Contracts,  real,  in  early  Roman  law,  313.  -                     i 

Contracts,  real,  in  later  Roman  law,  335,  336.  ;' 

Contracts,  subject-matter  of,  520.  \ 
Contracts,  verbal,  in  early  Roman  law,  313. 

Contracts,  verbal,  in  later  Roman  law,  337,  338.  ! 

Contracts,  who  may  be  parties  to,  515,  516.  \ 

Conveyance  of  land  by  deed,  482-486.  j 

Copyright,  463,  464.  > 

Corporeal  things,  by  later  Roman  law,  319.  j 

Corpus  juris  civilis,  52.  i 

County  courts  in  England,  90.  ■• 

Court  of  Common  Pleas  founded,  86.  ' 
Court  of  Exchequer  founded,  85. 

Court  of  Exchequer,  jurisdiction  of,  89.  , 
Court  of  King's  Bench,  jurisdiction  of,  88,  89. 

Court,  supreme,  of  the  United  States,  93,  94.  , 

Courts,  circuit,  of  the  United  States,  94.  ,' 

Courts,  district,  of  the  United  States,  94.  ; 

Courts,  ecclesiastical,  98,  99.  i 

Courts,  general  divisions  of,  20-23.  * 

Courts,  local,  of  Saxons,  81,  82,  234.  i 

Courts  of  admiralty,  99-102.  ] 

Courts  of  assize,  87,  88.  j 

Courts  of  England  and  America,  their  legislative  function,  176,  177,  178-  ] 

185.  I 

Courts  of  England,  changes  made  by  Edward  I. ,  87,  88.                                                        '■ 

Courts  of  England,  changes  made  by  Henry  II. ,  85,  86.  , 

Courts  of  England,  changes  made  by  John,  86.  \ 

Courts  of  England,  changes  made  by  William  I.,  84,  85.                                                       ^ 
Courts  of  equity,  95-98. 
Courts  of  equity  in  the  United  States,  97,  98. 
Courts  of  law,  81-95. 

Courts  of  law  of  the  states,  91.  ; 


550  INDEX. 

Courts  of  law  of  the  United  States,  90-95. 

Courts  of  probate,  99. 

Courts,  their  effect  ia  developing  the  law,  175,  185. 

Covenant,  action  of,  116,  121. 

Covenants  in  deeds,  486. 

Crimes,  their  prevention  and  punishment  among  the  Saxons,  237-240. 

Criminal  actions,  125-129. 

Criminal  actions  in  France,  128. 

Criminal  actions  in  Germany,  127. 

Criminal  evidence,  importance  and  general  character  of  its  rules,  148,  149. 

Criminal  evidence,  nature  of  facts  to  establish  guilt,  150. 

Criminal  evidence  of  French  codes,  general  pi'inciples  of,  162,  163. 

Criminal  evidence  of  German  codes,  general  principles  of,  155-162. 

Criminal  evidence,  presumption  in  favor  of  innocence,  149. 

Criminal  evidence,  prisoner  can  not  be  examined  or  testify  for  himself,  154. 

Criminal  evidence,  the  corpus  delicti,  150. 

Criminal  evidence,  the  guilty  intent,  153,  154. 

Criminal  evidence,  the  physical  connection  of  prisoner  with  the  crime,  150- 

153. 
Cnjiis  est  solum  ejus  est  ad  caelum,  541. 

D. 

Damnum,  in  Roman  law,  343. 

Days  of  grace,  536. 

Debt,  action  of,  116,  121. 

Debt,  arrest  and  imprisonment  for,  375,  376. 

Debtor,  succession  to  property  of,  in  later  Roman  law,  334. 

Decrees  of  Roman  emperor,  41. 

Deed,  conveyance  of  lands  by,  482-486. 

Deed,  deOned,  482. 

Deed,  essentials  of,  483,  484. 

Deed,  what  property  may  be  conveyed  by,  483. 

Deed,  who  may  make  a,  483. 

Deeds,  acknowledgment  of,  484. 

Deeds,  contents  of,  485,  486. 

Deeds,  recording  of,  484,  485. 

Degrees  among  next  of  kiu,  405,  466,  468. 

Degrees  of  consanguinity  by  later  Roman  law,  332,  333. 

Delicts,  in  early  Roman  law,  314. 

Delicts,  in  later  Roman  law,  342-344. 

Delivery  of  a  deed,  484. 

Delivery  of  things  sold,  521,  522. 

DeiKisitum,  by  later  Roman  law,  336. 

Deijositum,  contract  of,  524. 

Descent  of  property  in  things  real,  defined,  468,  469. 


INDEX.  551 

Descent,  rules  of,  at  common  law;  their  feudal  origin  and  character,  469-471. 

Descent,  rules  of,  at  common  law,  471-473. 

Descent,  rules  of,  in  American  law,  473^75. 

Detinue,  action  of,  117. 

Development  common  to  all  legal  systems,  168,  199. 

Development,  legal,  effected  by  means  of  statutes  and  judicial  decisions,  170. 

Devise  defined,  476. 

Digest,  the,  51. 

Direct  evidence,  description  of,  143. 

Disabilities  to  a  marriage,  431. 

Discharge  of  obligations,  by  later  Roman  law,  342. 

Dissolution  of  partnership,  530. 

Distribution  of  personal  property  of  an  intestate,  467,  468. 

District  courts  of  United  States,  94. 

Division  of  Roman  lands  among  barbarian  invaders,  347. 

Divisions,  numerical  and  territorial,  among  Saxons,  230-232. 

Divorce,  435-437. 

Divorce,  by  later  Roman  law,  316. 

Docketing  of  judgment,  488. 

Domestic  relations,  the,  429-454. 

Domestic  relations,  by  early  Roman  law,  302-305. 

Domestic  relations,  by  later  Roman  law,  316-318. 

Dormis  sua  cuiqiie  est  tutissimum  refugitim,  541. 

Donations,  by  later  Roman  law,  321. 

Donations,  causa  mortis,  481. 

Donations  defined,  480. 

Donations,  inter  vivos,  481. 

Dotal  marriages  in  France,  447,  448. 

Dower,  440,  498. 

Dower,  how  assigned,  499. 

Dower,  how  barred,  499. 

Dower,  to  what  lands  attaches,  498. 

Drawer  of  bill  of  exchange,  liabilities  of,  534. 

Drawer  of  bill  of  exchange,  liabilities  of,  how  fixed,  536,  537. 

"Due  process  of  law,"  meaning  of,  366,  367,  373. 

E. 

Ealdorman,  the  Saxon,  233. 

Easements  defined,  458. 

Ecclesiastical  courts,  98,  99. 

Ecclesiastical  courts,  power  over  administrators,  465,  467. 

Edicts  of  Roman  emperor,  41. 

Edicts  of  Roman  prsetors,  189,  190. 

Ejectment,  action  of,  120. 

Election  of  president  and  vice-president,  427,  428. 


552  INDEX. 

Election  of  representatives  in  Congress,  426. 

Election  of  state  officers,  428,  429. 

Electors  in  the  United  States,  425-429. 

Eminent  domain,  right  of,  390,  391. 

Emphyteusis,  339. 

Endorsement,  523. 

Endorsers  of  negotialjle  paper,  liabilities  of,  534,  535. 

Endorsers  of  negotiable  paper,  liabilities  of,  how  fixed,  536,  537. 

English  law  composite  in  its  character,  172. 

Eorls,  among  Saxons,  220. 

Equitable  actions,  129-137. 

Equitable  jurisdiction,  growth  of,  129-131,  134,  135. 

Equitable  jurisdiction,  examples  of,  131-134. 

Equitable  rules  respecting  mortgages,  503-505. 

Equity  courts,  95-98. 

Equity  courts  of  United  States,  97,  98. 

Equity  pleadings,  13G,  137. 

Escheats,  feudal,  266,  267. 

Escuage,  270,  271. 

Estates,  absolute,  495,  496. 

Estates,  classes  of,  495. 

Estates  defined,  495. 

Estates  for  life,  497-500. 

Estates  for  life  created  by  act  of  law,  497-500. 

Estates  for  life  created  by  act  of  parties,  497. 

Estates  for  years,  500,  501. 

Estates  in  expectancy,  509-511. 

Estates  in  fee  simple,  495,  496. 

Estates  in  possession,  509. 

Estates  qualified,  497-505. 

Evidence,  criminal,  importance  and  general  character  of  its  rules,  148,  149. 

Evidence,  criminal,  intent  of  criminal,  153,  154. 

Evidence,  criminal,  nature  of  facts  necessarj"^  to  establish  guilt,  150. 

Evidence,  criminal,  of  French  codes,  162,  163. 

Evidence,  criminal,  of  German  codes,  155-162. 

Evidence,  criminal,  physical  connection  of  prisoner  with  the  crime,  150-153. 

Evidence,  criminal,  presumption  in  favor  of  innocence,  154. 

Evidence,  criminal,  prisoner  can  not  be  examined  nor  testify,  154. 

Evidence,  criminal,  the  corpuis  delicti,  150. 

Evidence,  direct,  description  of,  143. 

Evidence,  f(>rm3  of,  oral  and  written,  141. 

Evidence,  general  rules  for  introduction  of,  on  trials,  145-148. 

Evidence  in  civil  actions,  137-148. 

Evidence  in  criminal  actions,  148-164. 


INDEX.  553 

Evidence  in  judicial  trials,  137-164. 

Evidence,  presumptive,  143. 

Evidence,  presumptive,  presumptions  of  fact,  143,  144. 

Evidence,  presumptive,  presumptions  of  law,  144,  145. 

Evidence,  written,  rules  relating  to,  141-143. 

Exchequer,  court  of,  its  jurisdiction,  89. 

Ex  dolo  malo  non  oritur  actio,  543. 

Execution  of  a  deed,  483,  484. 

Execution  of  judgment,  against  chattels,  488. 

Execution  of  judgment,  against  lands,  488,  489. 

Execution  of  wills,  477,  478. 

Executor,  duties  and  powers  of,  479. 

Executor,  how  appointed,  479. 

Ex  mido  pacta  non  oritur  actio,  544. 

Expectancy,  estates  in,  509-511. 

Express  contracts,  514. 

Eocpressio  unius  est  exclusio  alterius,  542. 

F. 

Faha  demonstratio  non  nocet,  542. 

Family,  ancient  Roman,  general  description  of,  306,  307. 

Fealty,  oath  of,  259. 

Federal  courts,  jurisdiction  of,  9^. 

Fee  simple,  estate  in,  495,  496. 

Fee  simple,  estate  in,  qualified,  496. 

Feud,  the  Saxon,  238,  239. 

Feudalism,  general  character  of,  242,  243. 

Feudalism,  general  influence  of,  on  modern  law,  243,  244. 

Feudalism,  origin  of,  244-252. 

Feudal  lord,  i-ight  of,  to  administer  justice,  263. 

Feudal  ownership  defined,  253. 

Feudal  ownership  of  lands,  origin  of,  254. 

Feudal  relation  of  lord  and  vassal,  258,  261-264. 

Feudal  system,  242-295. 

Feudal  system,  a  moulding  element  in  laws  of  modern  Europe,  170. 

Feudal  system,  causes  for  the  decline  of^  293-295. 

Feudal  system,  its  efiects  on  landed  property,  280. 

Feudal  system,  its  effects  on  lower  orders  of  society,  290,  291. 

Feudal  system,  its  effects  on  nobility,  292. 

Feudal  system,  some  important  eff'ects  on  English  and  American  law,  279- 

290. 
Feuds,  improper,  described,  265. 
'Feuds,  proper,  essential  characteristics  of,  260-265. 
Fidei  commissa,  112,  238,  239. 
Fiefs  described,  255,  256. 


5.34  INDEX.  ; 

Fiefs,  how  conferred,  259,  260.  ' 

Fines  upon  alienation,  feudal,  268.  '  ^     j 

Fixtures,  458,  459.  ! 

Flexibility  as  a  characteristic  of  legislation,  203-  205.  \ 

Folk  courts  among  Germans,  63-66.  I 

Folk  courts  among  Sajcons,  66,  67. 

Folk  land,  229.  ] 

Foreclosure  of  mortgages,  504.  | 

Forfeiture  as  a  method  of  acquiring  property,  487.  ■; 

Forfeiture,  constitutional  provisions  respecting,  487.  ' 

Forms  of  action,  ancient,  116.  \ 

Forms  of  action,  necessity  for  new,  117.  j 

Forms  of  action,  new,  invented  by  judges,  118-121.  j 

Forms  of  action,  recent  changes  in  the  United  States,  121.  I 

Forms  of  action,  when  introduced  in  England,  115,  ' 

Forms  of  marriage,  433. 

Formulas,  Roman,  107,  108. 

Frank  pledge,  the  collective  among^  Saxons,  236. 

Frank  pledge,  the  personal  among  Saxons,  235.  | 

Fraud  in  sales,  523.  J 

Freedmen,  by  early  Roman  law,  301.  | 

Freemen,  among  German  tribes,  65. 

Freemen,  among  Saxons,  219-222. 

Freemen,  by  early  Roman  law,  301.  j 

Free  socage  tenure,  273-275. 

French  codes,  52-o4. 

French  criminal  actions,  128.  i 

French  criminal  evidence,  162,  163.  ' 

French  law  of  marriage,  445-449.  j 

Furtum,  343.  : 

G.  j 

General  conncil  of  Saxons,  83,  84.  ? 

General  verdict,  164,  165.  ' 

Gerefa,  the  Saxon,  233.  j 

German  criminal  actions,  128.  ' 

German  criminal  evidence,  155-162.  i 

German  folk  courts,  60-GG.  •; 

Germanic  invasions,  210,  217,  245.  ; 

Gifts,  480.  i 

Gifts,  causa  mortis,  481.  j 

Gifts,  iut4r  vivos,  481.  \ 

Grace,  days  of,  536.  \ 

Grand  jury,  125.  j 

Guardian  and  ward,  452,  453.  ; 


INDEX.  555  i 

Guardian,  feudal,  452.  "  ' 

Guardian,  how  appointed,  452,  453.  ' 

Guardian,  powers  and  duties  of,  453.  i 

^  i 

Habeas  corpus  act,  363.  i 
Habeas  corpus,  writ  of,  described,  378.  ' 
Habeas  corpus,  %vrit  of,  for  what  purposes  used  by  state  courts,  381 ,  382.  ] 
Habeas  corpus,  writ  of,  for  what  purposes  used  by  United  States  courts,  ! 
379,  380.  i 
Habeas  corpus,  writ  of,  origin  of,  378,  379.  j 
Habeas  corpus,  writ  of,  suspension  of  an  incident  to  war  powers  of  govern- 
ment, 404.  '}. 
Habeas  corpus,  writ  of,  suspension  of,  effect  of,  398,  399,  400,  401.  j 
Habitation,  in  later  Eoman  law,  320.  j 
Hanseatic  towns,  laws  of,  356.  i 
Hearsay  evidence,  146,  147.  ' 
Heirs  appointed  by  will,  in  later  Roman  law,  324,  326.  \ 
Heirs  defined,  469.  J 
Heirs  of  an  intestate  by  later  Roman  law,  330-333. 

Heirs,  substitution  of,  by  later  Roman  law,  325.  j 

Heirs,  who  are,  at  common  law,  471-473.  .; 

Heirs,  who  are,  by  American  law,  473-475.  j 

Heirship,  feudal  origin  of,  the  rules  of,  at  common  law,  469-471.  j 

Hide,  the  Saxon,  227.  'j 
Hiring,  by  later  Roman  law,  339. 

Hiring,  contract  of,  525-527.  '., 

Holder  of  negotiable  paper,  rights  of,  535.  j 

Homage,  feudal,  method  of  entering  into,  259.  j 

Hundred  courts,  234.  I 

Hundred,  the  Saxon,  231.  j 

Husband  and  wife,  429-449.                                                       _  j 

Husband  and  wife,  by  later  Roman  law,  316.  \ 

Husband  and  wife  can  not  be  witnesses  for  each  other  at  common  law ,  139.  i 

Husband  and  wife,  this  rule  changed  by  recent  statutes,  139.  \ 
Husband  and  wife  can  not  contract  with  each  other  at  common  law,  441. 

Husband  and  wife,  changes  in  rules  concerning,  made  by  equity,  441-443.  ! 
Husband  and  wife,  character  of  common  law  rules  concerning,  441. 

Husband  and  wife,  recent  legislation  in  the  United  States,  443-445.  i 

Husband  and  wife,  rights,  powers,  and  duties  of,  437-445.  jj 

Husband,  control  of,  over  wife,  377.  ■ 
Husband,  personal  rights,  powers,  and  duties  of,  at  common  law,  438. 

Husband,  rights  of,  over  wife's  property  at  common  law,  439,  440.  '. 


55G  INDEX. 


Ignoratio  facto  excuscU;  ignoratio  legts  non  excusat,  540. 

ImuiON-ables,  457,  458. 

Implied  contracts,  514. 

Implied  coutracts,  in  later  Roman  law,  341,  342. 

Imprisonment  for  debt,  375,  376. 

Improper  feuds  described,  265. 

In  aquali  jure  melior  est  comUtio  2}0ssidentis,  543. 

Incorporeal  things,  in  later  E,omau  law,  319. 

Incorporeal  tilings,  real,  458. 

Increase,  natural,  property  acquired  by,  402. 

Indictment,  125,  126. 

Infants,  powers  and  liabilities  of,  451. 

Inheritance,  canons  of,  by  common  law,  471-473. 

Inheritance,  canons  of,  in  American  law,  473-475. 

Inheritance,  defined,  469. 

Inheritance  of  lands,  as  aflfected  by  the  feudal  system,  285-290. 

Inheritance,  rules  of,  at  common  law;  their  feudal  origin  and  character, 

409^71. 
Inheritance,  rules  of,  in  later  Roman  law,  330-333. 
Inheritances  among  the  Saxons,  229. 
Injunctions,  132,  133. 

Injure  non  remota  causa  sed  proximo,  spectatur,  539. 
Injuria,  in  later  Roman  law,  343. 
Innkeepers,  liabilities  of,  520. 
Insolvency  as  a  method  of  acquiring  property,  490. 
Insolvent^laws  in  United  States,  490. 
Institutes,  the,  51. 
Intent,  guilty,  of  prisoner,  153,  154. 
Interdicts,  112. 

InterpretcUionesfaciendcB  sunt  ut  res  magis  valeat  quam  hereat,  542. 
Intestacy,  by  early  Roman  law,  311. 
Intestacy,  defined,  464. 

Intestacy,  property  in  things  personal  acquired  thereby,  464—468. 
Intestacy,  property  in  thingS  real  acquired  therebj-,  408—475. 
Intestates,  distribution  of  personal  property  of,  467,  408. 
Intestates,  heirs  of,  by  later  Roman  law,  330-332. 
Intestates,  succession  to  estates  of,  by  later  Roman  law,  329-333. 
Inventions,  property  in,  463,  464. 
Investiture,  method  of,  200. 
Itinerant  justices,  when  introduced,  85,  86. 
Issue  must  be  proved,  145,  146. 


INDEX,  557 


Joint  and  several  contracts,  516. 

Joint  contracts,  516. 

Joint  ownership  in  lands,  511. 

Joint  ownership  in  things  personal,  494. 

Judge's  charge,  164. 

Judgment  anciently  enforced  only  against  chattels,  488. 

Judgment  and  execution  as  a  method  of  acquiring  property,  487-489. 

Judgment,  effect  of,  on  rights  of  parties,  166. 

Judgment,  how  docketed,  488. 

Judgment,  how  enforced,  166. 

Judgment,  how  enforced  against  chattels,  488. 

Judgment,  how  enforced  against  lands,  489. 

Judgment,  the,  as  a  result  of  the  decision  of  facts  and  law,  164-167. 

Judices,  Roman,  functions  of,  62. 

Judicial  decision,  law  of,  a  necessary  form,  206-211. 

Judicial  procedure  of  Romans,  61-63. 

Judiciary  of  England  and  United  States,  origin,  history,  and  jurisdiction 

of,  80-102. 
Juries,  organization  of,  in  England  and  United  States,  77,  78. 
Jurisconsults,  Roman,  187,  188. 

Jurisdiction,  extraordinary,  of  Roman  magistrates,  63. 
Jurisdiction  of  courts  of  equity;  examples  of,  131-134. 
Jurisdiction  of  courts  of  equity,  growth  of,  129-131,  134,  135. 
Jurisdiction,  ordinary,  of  Roman  magistrates,  61-63. 
Jury  trial,  5,  60-80. 
Jury  trial,  essential  elements  of,  61. 
Jury  trial,  general  progress  of,  69. 
Jury  trial,  growing  disposition  to  neglect,  79. 
Jury  trial,  merits  of,  78,  79. 

Jury  trial,  modifications  made  from  time  to  time,  75,  76. 
Jury  trial,  unanimity  of  verdict,  78. 
Jury  trial,  use  of  compurgators,  70-73. 
Jury  trial,  use  of  recognitors,  73,  74. 
Jury  trial,  why  not  developed  on  the  continent,  68,  69. 
Justinian,  codes  of,  49-52. 

K. 
King  of  England;  his  ancient  power  over  estates  of  intestates,  465. 
King  of  Great  Britain;  his  power  over  statutes,  43,  44. 
King,  the  Saxon,  232,  233. 
Kings  as  sources  of  statutes,  39-44. 
King's  Bench,  court  of,  its  jurisdiction,  88,  89. 
King's  council  of  Saxons,  83. 


558  INDEX. 


Labor,  oue's  ovra,  property  acquired  by,  462, 463.  i 

Land,  detined,  457.  : 
Land  held  of  superior  lords  among  the  Saxons,  228. 

Landed  property  among  the  Saxons,  226-230.  i 

Lands,  alienation  of,  as  affected  by  the  feudal  system,  282-285.  | 

Lands,  inheritance  of,  as  afifected  by  the  feudal  system,  285-290.  ; 

Lands,  ownership  of,  as  affected  by  the  feudal  system,  281,  282.  i 

Lands,  Roman,  division  of,  among  barbarian  invaders,  347.  5 
Lands,  sale  of,  on  execution,  489. 

Law  courts,  81-95.  i, 

Law  courts  of  United  States,  90-95.  ; 

Law  merchant,  general  character  of,  351,  352.  ; 
Law  merchant  of  England  and  United  States,  what  based  on,  357. 
Law  of  England  and  United  States  composite  in  its  character,  172. 
Law  of  judicial  decision  compared  with  statutes  and  codes,  194-213. 
Law  of  judicial  decision,  general  character  of,  185,  186. 

Law,  the,  a  reflex  of  a  nation's  culture,  173-175.  i 

Laws  of  Hanseatic  towns,  356.  j 

Laws  of  Oleron,  355,  356.  J 

Laws  of  Wisbuy,  356.  ) 

Leases,  500,  501.  \ 

Legacies,  by  later  Roman  law,  327.                                  •  ; 
Legacies,  payment  of,  479. 

Legacy,  detined,  476.  ' 

Legal  development,  chapter  on,  168-213.  { 

Legal  development  common  to  all  systems,  168,  169.  ' 

Legal  development,  how  effected,  170.  j 

Legal  maxims,  538-544.  •] 

Legal  procedure,  102-167.  \ 

Legal  procedure  of  Romans,  104-113.  \ 

Leges,  Roman,  33.  ) 

Lcjen  posteriores  priores  contrarias  abrogant,  539.  ' 

Legislative  power  of  courts,  170,  177,   178-185.  i 

Legislatures,  state,  general  powers  of,  36.  ] 

Letting  and  hiring,  by  later  Roman  law,  339.  i 

Lex  civllis  of  Romans,  106-109,  299,  300.  .1 

Lex  non  cogit  ad  impossibilia,  539.  > 

Libel,  definition  of,  371.  i 

Libel,  punishment  for,  371,  372.  1 

Liberty,  legal,  described,  372-374.  \ 

Liberty,  legal,  how  protected,  373.  \ 
Lilxrty,  personal,  limitations  on  the  right  of,  374-377,  393-419. 

Liberty,  pei-sonal,  right  of,  372-387.  1 


INDEX.  559 

Liberty,  personal,  right  of,  how  enforced,  377-382. 

Lien  of  judgments  on  lands,  4SS. 

Life  estates,  497-500. 

Life  estates  created  by  act  of  law,  497-500. 

Life  estates  created  by  act  of  parties,  497. 

Life,  right  of,  limitations  on,  393-419. 

Life,  security  of,  366-368. 

Limitations  on  rights  of  life,  liberty,  and  property,  393-419. 

Limitations,  statutes  of,  461,  462. 

Loan,  contract  of,  525. 

Local  courts  of  Saxons,  81,  82. 

Locatio,  or  hiring,  contract  of,  525-527. 

Lord  and  vassal,  feudal  relation  of,  258,  261-264. 

Lord,  feudal,  could  not  alien  without  consent  of  vassal,  263,  264 , 

Lord,  feudal,  right  of,  to  administer  justice,  263. 

Louisiana  codes,  54. 

M. 
Magna  Charta,  360-363. 
Maker  of  promissory  note,  liabilities  of,  534. 
Mancipation,  309. 
Mancipium,  304. 

Mandate,  by  later  Roman  law,  341. 
Mandate,  contract  of,  525. 
Mandates  of  Roman  emperor,  41. 
Manor  courts,  82,  263, 
Manus,  by  early  Roman  law,  304. 
Maritime  cities  of  Middle  Ages,  353,  354. 
Maritimes  codes  of  Middle  Ages,  351-357. 
Mark,  the  Saxon,  226,  227. 
Marriage,  by  later  Roman  law,  316. 
Marriage,  consent  of  parties  in,  432-434. 
Marriage  contracts,  442. 
Marriage,  defined,  430. 
Marriage,  disabilities  for  entering  into,  431. 
Marriage,  feudal,  269. 
Marriage,  forms  of,  433. 
Marriage,  French  law  of,  445-449. 
Marriage,  how  entered  into,  431-434. 
Marriage,  parties  to,  432. 
Marriage  relation,  the,  429-437. 
Marriage  relation,  the,  character  of,  434. 
Marriage  relation,  the,  how  terminated,  435-4ii. 
Marriage,  requisites  for  valid,  431. 
Marriages,  void  and  voidable.  435. 


5C0  INDEX. 

Martial  law,  defined,  405. 

Martial  Law,  effect  of,  40S-410. 

Martial  law,  extent  of  President's  power  to  enforce,  415-419. 

Martial  law,  recognized  by  the  constitution,  406-40S. 

Martial  law,  when  may  be  enforced,  410. 

Martial  law,  who  may  enforce,  411-415. 

Master  and  servant,  454. 

Masters  in  chancery,  97. 

Maxims,  legal,  53S-o44. 

Mercantile  law,  character  of,  351,  352. 

Mercantile  law,  what  founded  on,  357. 

Methods  of  acquiring  property,  459-490. 

Methods  of  acquiring  property,  by  later  Roman  law,  320-334. 

Military  law,  defined,  405. 

Mistakes,  corrected  in  equity,  132. 

Modus  et  conventio  finaint  legem,  543. 

Mortgage,  foreclosure,  504. 

Mortgagee,  rights  and  powers  of,  503,  504. 

Mortgages,  501-505. 

Mortgages,  ancient  rules  of  common  law  respecting,  502. 

Mortgages,  defined,  501. 

Mortgages,  modern  rules  of  equity  respecting,  503-505. 

Mortgages,  origin  of,  502. 

Mortgagor,  rights  and  liabilities  of,  503. 

Motive  for  crime,  153. 

Movables,  456,  457. 

Mimicipal  institutions,  of  Romans,  spared  by  the  barbarians,  346,  347. 

Municipal  law,  components  of,  historical  and  ethical,  7-9. 

Municipal  law  defined,  10. 

Mimicipal  law,  divisions  of,  having  reference  to  national  origin,  14-16. 

Municipal  law,  divisions  of,  having  reference  to  subject-matter,  11-13. 

Mimicipal  law,  divisions  of  form,  17-20,  30. 

Mvtuum,  335. 

K 
Native-bom  citizens,  419,  420. 
Natural  increase,  property  acquired  by,  462. 
Natur-alization  laws,  421,  422. 
Naturalized  citizens,  420,  421. 
Negligence,  degrees  of,  524,  525. 
Negotiability  defined,  532,  533. 
Negotiable  paper,  530-5,T 

Negotiable  paper,  parties  thereto,  rights  and  liabilities  of,  533-537. 
Negroes,  free,  query  whether  citizens  of  United  States,  420. 
Ntmo  debtt  bU  vexari  pro  una  et  eadem  causa,  540. 


INDEX-  561 

Nemo  dtebet  esse  judex  in  propria  sua  causa,  539.  i 

Xew  York,  revisetl  statutes  of,  55,  56.  | 

Next  of  kin,  degrees  among,  465,  466,  468.  j 

Xonnans,  general  influence  of,  on  English  law,  17.3.  ] 

Novation,  by  later  Roman  law,  .342.  ] 

Xovek  of  JuHtinian,  the,  52.  j 

NuUus  comraodura  capere  potest  de  injuria  sua  propria,  540.  ' 

0.  i 

Obligations  by  early  Roman  law,  312-314.  1 

Obligations  by  later  Roman  law,  3.34-.344.  \ 

Obligations,  classes  of,  335. 

Obligations  defined,  3.34. 

Obligations,  how  destroyed,  S42. 

Occupancy,  460.  ^  ■ 

Occupancy  by  later  Roman  law,  320.  '         J 

Officers,  executive  and  administrative,  among  Saxons,  232,  233.  '■■ 

Oleron,  laws  of,  .355,  3-56. 

Ornnis  ratihoMtio  retrotraJdtur  et  mawlato  priori  aquiparatur,  544» 

One's  own  labor,  property  acquired  by,  462,  463. 

Ordeal,  trial  by,  240.  ■ 

Original  writs,  114. 

Original  T\-rits,  new,  allowed  by  statute  of  Edward  L,  118. 

Ownership  in  common,  494,  512.  ' 

Ownership  in  severalty,  494,  511. 

Ownership,  joint,  494,  511. 

Ownership  of  lands  as  affected  by  the  feudal  system,  281,  282.  j 

p-  ; 

Palgrave,  Sir  F.,  opinion  on  the  origin  of  feudalism,  247.  I 

Palgrave,  Sir  F. ,  this  opinion  examined,  247-252.  i 
Pandects,  the,  51. 

Parent  and  child,  44&-452.  J 

Parent  £ind  child,  by  later  Roman  law,  317.  i 

Parent's  control  over  child,  277.  ! 
Parent,  rights  and  duties  of,  449,  450. 

Parliament  of  Great  Britain,  as  a  source  of  statutory  law,  S4-3S.  I 

Parliament  of  Great  Britain,  general  powers  of,  37,  38.  I 
Parliaments,  general  theory  of  their  legislative  action,  177,  178. 
Parol  contracts,  574. 

Parties  to  contracts,  who  may  be,  515,  516. 

Parties  to  marriage,  who  may  be,  432.  i 

Parties  to  negotiable  paper,  their  rights  and  liabilities,  533-537.  j 

Partners,  liability  to  third  persons,  529.  J 

36  ! 


562  INDEX. 

Partners,  powers  and  liabilities  of,  529,  530. 

Partnership,  by  later  Roman  law,  340. 

Partnership,  contract  of,  528-530. 

Partnership  defined,  528. 

Partnership,  how  dissolved,  530. 

Partnership,  how  entered  into,  529. 

Partnership  property,  530. 

Passive  trusts,  508. 

Patent  rights,  463,  464. 

Paterfamilias,  the  ancient  Roman,  302. 

Pater  familia-i,  the  ancient  Roman,  marital  power  of,  304. 

Paterfamilias,  the  ancient  Roman,  paternal  power  of,  303. 

Payment,  by  later  Roman  law,  342. 

Payment  of  legacies,  479. 
^  Peculium,  of  slaves  and  chUdren,  322. 

Personal  laws  among  Germanic  nations,  345,  346. 

Personal  liberty,  right  of,  372-387. 

Personal  liberty,  right  of,  how  enforced,  377-382. 

Personal  liberty,  right  of,  limitations  on,  374-377,  393-419. 

Personal  property  among  Saxons,  225,  226. 

Personal  securitj-,  right  of,  366-372. 

Personal  things  defined,  456,  457. 

Persons  and  personal  rights,  358-454. 

Persons,  by  early  Roman  law,  301-308. 

Persons,  by  later  Roman  law,  315-318. 

Persons,  classes  of,  359,  360. 

Persons  generally,  absolute  rights  belonging  to,  360-419. 

Persons  under  Saxon  institutions,  219-225. 

Petition  of  Right,  363. 

Philosophic  and  Chiistiau  period  of  Roman  law,  314-344. 

Pignus,  by  later  Roman  law,  336. 

Pleadings  in  actions  at  law,  122-125. 

Pleadings  in  actions  in  equity,  136,  137. 

Plebiscites,  33. 

Pledge,  contract  of,  525. 

Possessio  honorum,  330,  331. 

Possession,  estates  in,  509. 

Possession,  necessary  to  absolute  property  in  things  personal,  492. 

Potestaa,  by  early  Roman  law,  303. 

Prsetors,  Roman,  their  edicts,  189,  190. 

Praetors,  Roman,  their  powers  and  functions,  105-107, 110-112, 187, 189, 190. 

Pragmatic  sanctions,  41. 

Precedents,  their  use,  and  power  of  courts  over  them,  165,  180-183. 

Prerogative  of  British  crown,  64. 


IXDEX.  563  i 

1 

Prescription,  461. 

Prescription  by  later  Roman  law,  321. 

Presentment  of  bills  of  exchange,  534,  536.  ] 

President  of  United  States,  how  elected,  427,  42S. 

President  of  United  States,  power  of,  over  statutes,  44.  ! 

President  of  United  States,  power  of,  to  enforce  martial  law,  41.3-415.  !; 

President  of  United  States,  power  of,  to  enforce  martial  law,  extent  of,  | 

415-419. 

Presumptions  in  favor  of  innocence,  149.  | 

Presumptions  of  fact,  143,  144.  ' 

Presumptions  of  law,  144,  145.  j 

Presumptive  evidence  described,  143.  ', 

Pi-ice  of  things  sold,  521.  ' 

Primer  seizin,  feudal,  268.  j 

Primogeniture,  origin  of,  469.  ' 

Principal  and  agent,  527,  528.                                                             '  i 

Principal,  when  bound  by  acts  of  agent,  528.  . 

Prisoner  can  not  be  examined  nor  testify  for  himself,  154.  ^ 

Prize,  101.  j 

Probate  courts,  99.  i 

Procedure  in  courts,  102-167.  : 

Promissory  notes  and  bills  of  exchange,  530-537.  j 

Promissory  notes,  defined,  531.  \ 

Promissory  notes,  parties  to,  rights  and  liabilities  of,  533-537.  ) 

Proof,  burden  of,  146.  i 

Property,  455-512.  i 

Property,  absolute,  defined,  491.  ^ 

Property,  absolute,  in  things  personal,  492.  | 

Property,  definition  of,  455.  ; 

Property,  ex  jure  quiritum,  309.  I 
Property,  kinds  and  degrees  of,  490-512. 

Property,  method  of  acquiring  by  bankruptcy  and  insolvency,  489,  490. 
Property,  method  of  acquiring  by  contract,  481,  482. 

Property,  method  of  acquiring  by  deed,  482-486.  i 

Property,  method  of  acquiring  by  donation,  480,  481.  | 

Property,  method  of  acquiring  by  forfeiture,  487.  i 

Property,  method  of  acquiring  by  judgment  and  execution,  487-489.  i 
Property,  method  of  acquiring  by  will,  475-479. 

Property,  method  of  acquiring,  in  case  of  intestacy,  in  things  personal,  i 

464-468.  I 

Property,  method  of  acquiring,  in  case  of  intestacy,  in  things  real,  468-475.  ' 

Property,  methods  of  acquiring,  459-490.  , 
Property,  methods  of  acquiring,  by  later  Roman  law,  320-334, 

Property,  private,  right  of,  387-391.  i 


564  INDEX. 

Property,  private,  right  of,  how  may  be  interfered  -with  by  a  private  per- 
son, 3S3. 

Property,  private,  right  of,  how  may  be  interfered  with  by  the  public, 
3S»-391. 

Property,  private,  right  of,  limitations  on,  393-419. 

Property,  private,  right  of,  remedies  for  infringement  on,  3SS. 

Property,  qualified,  defined,  491,  492. 

Property,  qualified,  in  things  personal,  493. 

Property,  things  which  may  be  the  objects  of,  455-459. 

Public  things,  by  later  Eoman  law,  319. 

Purchase  and  sale,  by  later  Eoman  law,  339. 

Purchaser  at  mortgage  foreclosure,  rights  of,  504. 

Q. 

Qualified  estates  tu  land,  497-505. 

Qualified  property  denned,  491,  49"2. 

Qualified  property  in  things  personal,  493. 

Quality  of  interest,  491. 

Quantity  of  interest,  491. 

Quidquid  plantatur  ?olo  solo  cedit,  541. 

Quijacit  per  aUum/acii  per  se,  544. 

Qui  hceret  in  litem  hcerei  in  cortice,  543. 

Quilkbet  potest  renuntiare  jure  pro  se  introducto,  543. 

Qui  prior  est  tempore  potior  est  jure,  541. 

Qui  sentit  commodum  sentire  debet  et  onus,  543. 

R. 

Eachinbonrgs,  65. 

Eeal  contracts  by  later  Eoman  law,  335,  336. 

Eeal  things,  457,  45S. 

Eeal  things,  incorporeal,  45S. 

Eecognitors  in  early  Saxon  trials,  73,  74- 

Eecording  of  deeds,  effect  of,  4S4,  4S5, 

Becup^ratores,  63. 

Eeformation  of  written  instruments  in  equity,  132. 

Eelationship,  degrees  of,  46S. 

EeUefs,  feudal,  268. 

Eemainders  defined  and  described,  509-511. 

Eemainders,  effect  of,  to  suspend  power  of  alienation,  510,  511. 

Bemedies,  civil,  for  infringement  of  right  of  personal  liberty,  377,  378. 

Remedies,  civil,  for  infringement  of  right  of  private  property,  388. 

Eemedies,  civil,  for  injuries  to  body  or  limb,  369. 

Remedies,  civil,  for  slander  or  libel,  371. 

Eemedies,  civil,  for  taking  life,  368. 

Remedies,  criminal,  for  libel,  372. 


INDEX.  565 

Rent,  defined,  458. 

Representative  assemblies,  as  a  source  of  statutes,  3.'>-39. 

Representatives  in  Congress,  how  elected,  426.  j 
Rescripts,  41. 
Res  mancipi,  308. 

Hes  nee  mancipi,  309.  1 

Respondeat  superior,  544.  j 

Reversions,  511.  \ 

Review  of  decisions  of  inferior  courts,  165.  ■! 

Revised  statutes  of  Xew  York,  55,  56.  \ 

Revocation  of  wills,  478.  | 

Right  of  personal  liberty,  372-387.  ] 

Right  of  personal  liberty,  how  enforced,  377-382.  \ 

Right  of  personal  liberty,  limitations  on,  374-377,  393-419.  j 

Right  of  personal  security,  366-372.  'i 
Right  of  private  property,  387-391. 

Right  of  private  property,  how  may  be  interfered  with  by  a  private  per- 
son, 388.  1 
Right  of  private  property,  how  may  be  interfered  with  by  the  public,  389-  j 

391.  : 

Right  of  private  property,  remedies  for  its  infringment,  388.  \ 

Right  of  religious  belief  and  worship,  392,  393.  j 

Right,  petition  of,  363.  \ 

Rights,  absolute,  belonging  to  persons  generally,  360-419.  ! 

Rights,  bUl  of,  364.  \ 
Rights  of  life,  liberty,  and  property,  limitations  on,  293-419. 

Roman  commonwealth,  its  primitive  constitution,  297-299.  j 
Roman  emperor,  40. 

Roman  emperor,  constitutions  of,  40^2.  j 

Roman  family,  ancient,  general  description  of,  306,  307.  ! 

Roman  judicial  procedure,  61-63,  104-113.  I 

Roman  jurisconsults,  187,  188.  j 

Roman  lands,  how  divided  among  the  barbarians,  397.  j 

Roman  law,  296-350.  I 

Roman  law,  aristocratic  period,  297-314.  i 

Roman  law,  as  a  personal  law  among  German  invaders,  345.  J 

Roman  law,  during  middle  ages,  and  its  connection  with  modem  juris-  ^ 

prudence,  344-350.  \ 

Roman  law,  its  primitive  character,  299,  300.  3 

Roman  law,  philosophic  and  Clrristiau  period,  314-344.  ' 

Roman  law,  study  of,  revived  in  twelfth  century,  348.  j 

Roman  law,  the  basis  of  that  of  continental  states,  171.  ; 

Roman  lex  civllis,  106,  109.  ' 

Roman  municipal  institutions  preserved  during  middle  ages,  346,  347.  ] 


566  DTDEX.  ; 

Banaa  or  Quiritary  property,  309. 

'Rnm.Ti  praetors,  edicts  of,  1S9,  190. 

Booaa  praetors,  po-wers  and.  functions  of,  105-107, 110-112,  1S7, 189,  190l 

Bomaii  twelve  tables,  4S,  49. 

"Ri^iwim  senate  in  primitive  times.  3S. 

"Pi^p«>na  in  Britain,  215,  216. 

^  J 

Sale,  contract  of,  520-523. 

Sale  of  landa  on  execution,  4S9.  < 

Sales  by  later  Roman  law,  321 ,  322,  339.  i 

Solas  popidl  auprsTna  lex,  539.  ■ 

Sason  folk  courts,  66,  67.  j 

Saion  general  cotmcil,  S3,  S4.  j 

Saxon  institutions  and  laws,  214-241.  J 

Saxon  institutions  and  laws,  executive  and  administrative  offi£aa^23%S3X  1 

Saxon  inatii:ution3  and  laws,  frank  pledge,  235-237.  1 

Saxon  institutiona  and  laws,  influence  of,  on  our  own  law,  241.  I 

Saxon  iostitutions  and  laws,  judicial  and  admioiatrative  aaaem.biies,231^  235. 

Saxon  institurions  and  laws,  landed  property,  226-230.  | 

Saxon  institutiona  and  laws,  numerical  and  territorial  diviaiona,  230^232. 

Saxon  institutiona  and  laws,  personal  property,  225,  226.  \ 

Saxon  toatituTiona  and  laws,  persons,  classes  of,  219-225.  1 

Saxon  institutiona  and  laws,  political  organizaticai,  230-241.  { 

Saxon  institutions  and  laws,  prevention  and  yam^amsak  of  crime,  237-240L  ^ 

Saxon  local  courts,  31,  S2.  i 

Saxon  manor  courts,  82. 

Saxons  in  Britain,  217, 213.  ■i 

SszoDS,  tbeir  general  influence  on  FngHah  law,  172.  -< 

Scabini,  66. 

Seal  of  a  deed,  4S3, 4S4. 

Security  of  body  and  limb,  368,  369.  , 

Security  of  character,  369-372.  ■ 

Security  of  life,  366-368. 

Security,  personal,  rigiit  of,  366-372.  J 

Seizin,  defined,  471. 

Self -defense,  right  of,  367,  368. 

Senate  of  Rome,  in  primitive  times,  33.  ' 

Serfdom  in  England,  384-386. 

Serfdom  in  England,  how  extinguished,  384-386.  ; 

Servitudes,  by  later  Roman  law,  319. 

Settlements,  marriage,  442. 

Shire,  the  Saxon,  231- 

Shire  court,  234. 

Sic  vtero  tuo,  tit  aJSkomem  Tion  ladcu,  541.  i 


DTDEX.  567 

Slander,  definition  of,  369,  370. 
Slander,  punishment  for,  371. 
Slavery,  definition  of,  3&S. 

Slavery  in  United  States,  general  legal  rales  of,  386,  387. 
Slaver}',  status  of,  .3S2-.%7. 
Slaves,  by  early  Roman  law,  301. 
Slaves,  by  later  liornan  law,  315. 
Socage  tenure,  27.3-275. 
Specialties,  514. 
Special  verdict,  164. 
State  courts  of  United  States,  91. 
State  legislatures  of  United  States,  34-38. 
.State  legislatures,  general  powers  of,  36. 
Statute  of  distributions,  467,  468. 
Statute  of  Edward  L,  aUowi^  new  writs,  118. 
Statute  of  frauds,  142. 
Statute  of  limitations,  461,  462. 
Statute  of  uses,  506,  507. 
Statute  of  uses,  effect  of,  507. 
Statutes,  28-56. 
Statutes,  forms  of,  4.5—56. 
Statutes,  general  nature  of,  17,  24. 
Statutes  in  form  of  codes,  47-56. 
Statutes,  single,  45,  46. 
Statutes,  sources  of,  30. 

Statutory  legislation,  compared  with  the  law  of  judicial  decision,  1&4-213. 
Statutory  legislation,  general  character  of,  186. 
Stipulations,  by  early  Roman  law,  313. 
Stipulations,  by  later  Roman  law,  337,  338. 
Study  of  law,  kind  of,  needed,  6,  7. 
Study  of  law,  reasons  for,  1-6. 

Study  of  Roman  law,  revival  of,  in  twelfth  centurj-.  348. 
Subinfeudation,  2-56,  257. 
Subject-matter  of  contracts,  520. 
Subsequent  mortgagors  and  judgment  creditors,  504. 
Substitution  of  heirs,  by  later  Roman  law,  325. 

Succession  to  estates  of  deceased  persons  by  early  Ronum  law,  310,  311. 
Supply  bUls,  46. 

Supreme  court  of  the  United  States,  org^iization  and  jurisdiction  of,  93,  91. 
Surrogate  courts,  99. 

Surrogate  courts,  powers  of,  over  administrators,  465,  467. 
Suspension  of  power  of  alienating  lands,  510,  511. 

Suspension  of  writ  of  habeas  corpus,  an  incident  of  war  powers  of  govern- 
ment, 404. 
Suspension  of  writ  of  habeas  corpus,  effect  of,  398-401. 


568  INDEX. 


T. 


Taxation,  powers  of  government  in  respect  to,  389,  390. 

Tenant,  defined,  272. 

Tenure,  defined,  272. 

Tenure,  free  socage,  273-275. 

Tenure,  villain,  275-278. 

Tenures,  feudal,  described,  272-279. 

Tenures,  military,  272. 

Testator,  who  may  i>e,  477. 

Thegns,  among  Saxons,  222-224. 

Theory  of  judicial  action,  176,  178-185. 

Theory  of  parliamentary  action,  177,  178. 

Theows,  among  Saxons,  224. 

Things  common,  by  later  Roman  law,  318.   ^ 

Things  corporeal,  by  later  Roman  law,  319. 

Things  in  action,  457. 

Things  incorporeal,  by  later  Roman  law,  319. 

Things  not  objects  of  property,  456. 

Things  personal,  456,  457. 

Things  personal,  absolute  property  in,  492. 

Things  public,  by  later  Roman  law,  318. 

Things  real,  457. 

Things  real,  incorporeal,  458. 

Things  which  may  be  the  objects  of  property,  455-459. 

Things  which  may  be  the  objects  of  rights  by  eai'ly  Roman  law,  308-311 

Things  which  may  be  the  objects  of  rights  by  later  R,oman  law,  318-334. 

Time  of  enjoj^ment  as  an  element  of  property,  491. 

Town  meetings,  31,  82. 

Transfer  of  lands  among  Saxons,  229,  2.35, 

Trespass,  action  of,  117,  120. 

Trespass  on  the  case,  118,  119. 

Trial  by  jury,  60-80. 

Trial  by  ordeal,  among  Saxons,  240. 

Trover,  action  of,  120. 

Trustees,  examples  of,  508. 

Trusts,  active  and  passive,  508. 

Trusts  defined  and  described,  507,  508. 

Trusts  in  later  Roman  law,  328,  329. 

Tutors,  by  early  Roman  law,  305,  306. 

Tutors,  by  later  Roman  law,  317,  318. 

Twelve  tables,  the,  48,  49. 

Tything,  the,  among  Saxons,  230. 


INDEX.  569 

u. 

Uhi  eadem  ratio  ibi  idemjtis,  539. 

Uhijus  ibi  remedium,  539. 

Unfree  nobles  among  Saxons,  222-224. 

United  States,  circuit  courts  of,  94. 

United  States,  citizens  of,  419-425. 

United  States,  Congress  of,  has  no  power  to  enforce  martial  law,  413-415. 

United  States,  constitution  of,  provisions  affecting  personal  rights,  364-366, 

394-396. 
United  States,  constitution  of,  provisions  affecting  personal  rights  are  bind 

ing  on  all  departments  of  government,  397,  399-401. 
United  States,  district  courts  of,  94. 
United  States,  equity  courts  of,  97,  98. 

United  States,  president  of,  power  to  enforce  martial  law.  413-419. 
United  States,  supreme  court  ?f ,  93,  94. 
Unity  as  an  element  of  legislation,  205. 
Unwritten  law,  57-167,  168-213. 
Unwritten  law,  a  necessary  form,  206-211. 

Unwritten  law,  compared  with  statutory  legislation  atd  codes,  194-213. 
Unwritten  law,  general  method  of  its  growth,  57. 
Unwritten  law,  general  nature  of,  18,  25,  26,  185. 
Use,  by  later  Roman  law,  320. 
Uses  and  trusts,  133,  134,  505-509. 
Uses,  definition  of,  505,  506. 
Uses,  origin  of,  506. 
Uses,  statute  of,  507. 
Usucaptio,  310. 
Usufruct,  by  later  Roman  law,  319. 

V. 

Vassal  could  not  alien  fief  without  consent  of  lord,  263. 

Verba  chartarum  fortkis  acdpiuntur  contra  proferentem,  542. 

Verba  intentioni,  non  e  contra,  deberet  inservire,  542. 

Verbal  contracts,  by  later  Roman  law,  337,  338. 

Verdict  of  jury,  general,  164,  165. 

Verdict  of  jury,  special,  164. 

Verdict  of  jury,  unanimitj'  in,  78. 

"V  eto  power  of  British  crown  and  American  president,  38. 

Vigilantihus,  non  dormientibus,  jures  subveniunt,  544. 

Villain  tenure,  275-279. 

Villains,  feudal,  described,  275-278. 

Void  and  voidable  marriages,  435. 

Volenti  non  fit  injuria,  540. 


570  INDEX. 

W. 

Wardship,  feudal,  269. 

Warehousemen,  liability  of,  526. 

War  powers  of  government,  402-404. 

Warranty  of  thing  sold,  522. 

Warranty  of  title,  522. 

Wehrgyld,  the  Saxon,  221,  237. 

Wife,  how  may  bar  her  dower  right,  499. 

Wife,  rights  and  duties  of,  at  common  law,  439. 

Wife,  rights  of  property  in  equity,  441-443. 

Wife,  rights  of  property,  recent  legislation  in  United  States,  443-445. 

Wife,  rights  to  husband's  property,  440. 

Wills,  as  a  method  of  acquiring  property,  475-479. 

Wills,  by  early  Roman  law,  311. 

Wills,  by  later  Roman  law,  323-327. 

Wills,  defined,  475. 

Wills,  how  executed,  477,  478. 

Wills,  how  revoked,  478. 

Wills,  what  property  may  be  given  by,  476. 

Wills,  when  originated  in  England,  476. 

Wills,  when  operative,  478. 

Wills,  who  may  make,  477. 

Wisbuy,  laws  of,  356. 

Witena-gemote,  83,  234,  235. 

Witnesses,  alterations  in  rules  concerning,  139,  140. 

Witnesses,  husband  and  wife  cannot  be  for  each  other  at  common  law,  439. 

Witnesses  must  be  present  on  trial,  137,  138. 

Witnesses  must  be  present  on  exceptions,  138. 

Witnesses,  who  may  be,  in  general,  138,  139. 

Worship,  religious,  right  of,  392,  393. 

Writings,  property  in,  463,  464. 

Writ  of  habeas  corpus  described,  378. 

Writ  of  habeas  corpus,  eflfecfc  of  suspension  of,  398-401. 

Writ  of  habeas  corpus,  for  what  purposes  used  by  state  courts,  381,  382. 

Writ  of  habeas  corpus,  for  what  purposes  used  by  United  States  courts, 
379,  380. 

Writ  of  habeas  corpus,  origin  of,  378. 

Writ  of  habeas  corpus,  suspension  of,  an  incident  to  war  powers  of  the  gov- 
ernment, 404. 

Writs,  new,  allowed  by  statute  of  Edward  I.,  118. 

Writs,  original,  114. 

Written  contracts,  338. 

Written  evidence,  rules  relating  to,  141-143. 

y. 

Years,  estates  for,  500,  501. 


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